AS the past events progressed culminating in the final resignation of Communication and Transport minister Dora Siliya yesterday, serious questions have been asked about the porosity of the Republican Constitution in dealing with constitutional breaches.

In particular, questions have been asked whether the legal advice of the Attorney General has the force of an order, a breach of which should be prescribed by law.

At centre stage of the case involving Ms Siliya has been that she ignored the advice of the Attorney General when she awarded a contract to RP Capital Limited of Cayman Islands to evaluate ZAMTEL assets and consequently in breach of the Constitution, namely article 54(3).

Since then the legal fraternity has been engaged in a debate as to whether the language that Article 54(3) is couched, the duty to seek the advice of the attorney general explicitly points to the likely consequences if this advice was not sought, or let alone not followed.

Article 54 of the Constitution creates and sets out the powers and functions of the office of the Attorney General and Article 54(3) states:

Subject to the other provisions of this Constitution, an agreement, contract, treaty, convention or document by whatever name called, to which Government is a party or in respect of which the government has an interest, shall not be concluded without the legal advice of the attorney general, except in such cases and subject to such conditions as parliament may by law prescribe.

This far, the article makes it explicit that no agreement, contract, treaty or whatever document that Government is a party or has an interest in, can be concluded without first seeking the legal opinion of the attorney general..

After all, the attorney general is only an advisor and he cannot tell or command the principal to follow his advice.

In this respect Article 54(3) does not say the advice rendered by the attorney general must be followed.

It simply says no agreement, contract shall be concluded without the legal advice of the attorney general. It does not prescribe the penalties.

The flip side of the coin is, if one does indeed consult does it render the advice tendered binding?

“If you are asking for advice, is the advice binding. No. The person asking has a choice to accept, reject or modify the advice. And what is the effect of not consulting? The answer is that the advice is not binding,” an observer says.

Article 54(1) refers to the attorney general as the principal legal adviser.
Which means that when one is an advisor, his duty was simply to advise. Period.

Late president Levy Mwanawasa made this fact very clear when he appointed and swore in Mumba Malila as attorney general on December 8, 2006.

At the time, he made a statement to the effect that; the advice of the attorney general could either be accepted or rejected and tasked him not to make public the advice he renders to Government.

“Now if you are going to serve as a proverbial head boy, you will find it very difficult to guide the Government in the field of law. I am a lawyer by profession and State counsel. They say it takes 99 years to train a lawyer. In other words I am capable of making mistakes.

“I do hope that you will encourage the spirit of dialogue and the spirit of advice. Your advice can be accepted or rejected. That is why you should not discuss the matter of advice in public,” Dr Mwanawasa said.

It was as if he was saying the attorney general has to win the confidence of Government on any advice he renders.

However, the main problem that the Zambian Constitution has suffered over the years, and which the case of Ms Siliya has brought out is that it is very porous in a number of areas.

Observations have been made that apart from the vagueness, in its current form Article 54(3) and many others in the Constitution is inconclusive and porous.

Some observers pointed out that the Constitution in its current form did not provide for penalties in the event of a Government official or minister concludes an agreement without seeking the advice of the attorney general.

This is because whereas there is a duty or an obligation for all contracts, agreements, contract, or whatever name it is called and to which Government is a party or has an interest, to bear the legal opinion of the attorney general, the provision is silent on the consequences or penalties in the event of a breach.

So whereas the tribunal headed by Justice Dennis Chirwa in its findings found Ms Siliya to be in breach of Article 54(3) of the Constitution for not heeding to the advice of the attorney general, there was no corresponding penalty, hence referring the matter to the president.

In considering the allegations that Ms Siliya had ignored the advice of the attorney general when she awarded the contract to RP Capital Partners of Cayman Islands to evaluate assets of Zamtel, the tribunal found that the minister usurped the powers of the Zambia Development Agency (ZDA).

“The advice of the attorney general of the 5th January, 2009 was that the first memorandum of understanding be treated as a nullity and be re-done. His advice was not that a second memorandum of understanding concerning the role of the Zambia Development Agency be signed.

Further, the role spelt out for the Zambia Development Agency in the second memorandum of understanding is merely that of providing supervision over RP 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, No11 of 2008 do not give powers to a minister to do what Hon Dora Siliya did. The action she took unlawfully usurped the powers of the Zambia Development Agency.

We further note that the Attorney-General had indicated in his letter of the 5th of January, 2009 that since the Memorandum of Understanding related to the privatisation of a parastatal company, it should have been signed by the Minister of Finance and not Hon. Dora Siliya. Indeed under Section 44 of the Zambia Development Agency, Act No. 11 of 2008, the minister responsible for finance is the authority empowered to sign the sales agreement to transfer shares or assets to the selected bidder.

Therefore, we agree with the attorney general that the memorandum of understanding which was the preliminary stage leading to the final sale and transfer of the assets of Zamtel should have been signed by the minister of Finance. That aspect of the attorney general’s letter of the 5th January 2009 was not addressed.

It is clear that Hon Dora Siliya ignored the attorney general’s advice of the 5th January 2009,” the tribunal report reads.

The use of the word “shall” prohibits any Government minister or official from signing any agreement, contract etc without seeking the legal opinion of the attorney general.
In law, the word “shall” implies mandatory as opposed to “may” which confers discretion on the part of the Government official.

So then the question is, does the attorney general’s advice has to be sought? And if it is sought, does it have to be followed? Is it binding?

Some observers say despite the use of the word “shall” which gives advice the connotation of a mandatory order, the force of the provision is in fact the reverse.

The advice sought and when given is in fact discretionary, in that it can be accepted, rejected or modified by the principal.
The Zambian Constitution is structured in such a way that there are no express provisions for the consequent breaches.

The other side of the argument is that the attorney general’s advice is mandatory and there are no two ways about it.
The problem is that there are no penalties that are prescribed and therefore it can only be left to the president to deal with it.

“It is a constitutional matter which only the president can address and he should be left to decide what is best.”

Given the circumstances, the president was presented with two options, either to fire or ask Ms Siliya to resign.

The option of asking Ms Siliya to resign was more plausible. Even in the United States, officials who found themselves in similar circumstances are normally asked to resign quietly.

The beauty is that it gives the president leeway to re-appoint such an official years later as opposed to firing.
This partially explains why Ms Siliya took the decision to stand down as minister.

However, in order to put matters beyond doubt, issues of consequences and penalties arising from breaches of the Constitution need to be dealt with.

The problem with the Constitution is that many provisions are vague and leave a lot hanging or to chance. Many clauses have to be amended to include penalties. Otherwise, it creates and will forever remain a problem.

Even matters judged to be a breach will remain debatable.

[ Times of Zambia ]

[Read 5 times, 2 reads today]
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47 COMMENTS

  1. Of course this article needs the law flaternity to comprehend best. But What I gather is there is confusion in here. If a standing law says I should ask someone for advice before taking any action and it is also for me to accept or deny that advice… Why then seek that advice??? this is me, a commoner in law issues.. and an ordinary Zambian understanding way of this issue..( like any man in Mtendere, Kalingalinga , Mandevu..Malapodi,Chibolya etc.. this is an example)….
    Please correct me if I have just gone ‘fishing’ on this issue… lol

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  2. The constitution that we have is archaic and confers a lot of powers to the president.Provisions of the constitution should be clearly stated in a laymans’ language as opposed to the law jargons.Prior to the formationof ZDA (merging of ZIC,ZEPZ etc),the privitaisation was signed by the minister underwhich that parastatal falls.Now what Dora did was to ignore the new rules under ZDA which give sweeping powers to the Finance ministry in issues of privitisation and that came with a cost; resignation.Anyway,Idont believe in PHD mentality neither do I condone lawlessness,therefore I wish Dora success in her futuer endeavours especially now that she will have more time for her people in Petauke.

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  3. Now, if there is porosity in the Zambian Constitution, who is responsible for correcting the constitution??
    We dont need a repitition of errors on gross national issues…….

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  4. What should be the fate of all those in Government that were in support with the Honourable

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  5. The fact that we have an AG who is legal advisor to govt means that his legal opinion must be followed at all times! These cabinet ministers are laymen who dont know jack about the law. Good riddance anyway. Next!

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  6. Whatever the case on “The problem with the Constitution is that many provisions are vague and leave a lot hanging or to chance. Many clauses have to be amended to include penalties. Otherwise, it creates and will forever remain a problem”, this is why we have the NCC to give us a better Zambian Republic Constitution by end of June, Draft, and later before the 2011 elections as a full Constitution.

    I therefore know that Zambia is a very blessed Nation having had the death of former President LP Mwanawasa and the Dora Siliya Zamtel SAGA as case studies for helping us Zambians come up with a better Rpublican Constitution.

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  7. Ba Moze Nili bwino ine mudala,Nanga imwe uko umoyo ulibwanji? Just saw them bloggers celebrating the downfall of another Zambian.This is a lesson to all of us that in times of trouble its one man commando.

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  8. Sharp shooter, its difficult to sympathise with these people pantu when they are up there, they become untouchable. Hence the celebrations. Also the must learn not to take the people of Zambia for granted, and that humility in the face of adversity can earn you a lot of respect and friends. Let her Go!

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  9. Wheather Article 54(3) of the current constitution is flawed or not Dora must have been gone a long time ago. Besides, there seem to have been some collusion regarding not finding her wanting on the K12.5 Miliion theft. She stole the money belonging to the poverty sricken peasants of Petauke. The council secretary must be arrested for coniving with Dora to deprive the people of Petauke. Rupiah must leave Mumba Malila alone. He is far much smarter than the combinatin of Dora, Gerge Nkunda, I mean Kunda. and Rupiah himself.

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  10. Dora may have done an honourable thing to resign. I think that she waited rather too long. She could have avoided all the humiliating comments if she had done so earlier. Anyway, that is the way to go. Other ministers must take a leaf from Dora’s example.

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  11. Ba moze lesson learnt! and blog with you later.All stay blessed including Dora(Mind you she really needs us in such times.No hard feelings,she is gone).

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  12. The issue at hand is that Dora had breached the Zambian constitution. So she must go together with Kunda for misleading Zambians. Enough is enough, we shall wait to see Kunda`s fate.

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  13. #11, Iyee, Ba Moze, Kale mwee, nalimifuluka… Muli bwanji pela? Manje that flag? L.T has awarded you a new one or you have gone for summer visit in Euro? lol.

    Ine nili gwaaa Ba Moze and thanks..
    Back to the topic. Ba Moze, if you read all up to paragraph 13 in this issue.. everything is so mumble-jambled, rather confusing,though straight forward at some point..

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  14. She was so anxious to be fired. But when she saw that this was not forthcoming, she decided to take a early lead. She must however faced the law

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  15. My concern is whether the NCC has ability to see this porosity within our constitution aprt from the Dora Siliya saga. If this Dora’s case did not exist, were the NCC still going to be able to see the prosity this case has revealed? If NCC is not able to see these things, unless some even reveals them, then we have a big problem at our hands. It would mean we shall forever be reviewing our constitutions.

    We need the NCC to come out and assure the nation that they have the required depth and insight that is needed to deliver a robust constitution. They should be ahead of the game.

    Leader should lead, not react.

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  16. What can I say. I just feel sorry for Dora. Anyways these facts will lead us into the next chapter after 2011. I hope politicians are ready to learn from this.

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  17. Too bad for Dora, but the problem still remains hanging. How ar we going to save Zamtel, which way foward?

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  18. 22, UK-Zed Observer, failing helps us to learn. Experience has us do better next time. I hope this will help you understand the NCC’s position. Otherwise, the Zambian Republican Constitution has to continue being amended for the better even after the 2011 elections.

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  19. Its like it is George Kunda who wrote this article, any way when it doesnt suit you thats when you say its flawed. she should have just done the right thing.

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  20. Porous or not abuse of office is a crime. Besides we all know(even my 11y daughter) that this piece of paper has been taylored to suit each sitting president. Even the current circus meeting at Mulungushi is trying to make it suit MMD, Even in countries where they have no constitutions crime is punishable. So stop feeding us on these amalabishi

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  21. From ZNBC website “But Forum for Leadership Search executive director Edwin Lifwekelo described Ms Siliya’s resignations as a sad development.”

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  22. Ya the constitution might be inadequate, but that is no reason not to act decently, there are things which we know by natural reason that they are wrong with or without the law saying so.

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  23. To me, the case is simple. The learned men have ganged up together to protect their profession here. Everyone knows that legal advice can be accepted or rejected. At the end of the day it is only the opinion of one man and another lawyer could have a different opinion. You see this in the case of the Iraq war in UK and torture of Guantanamo inmates in the USA. There are differing opinions to the legality of all these cases. What the tribunal should have determined was whether Dora Siliya had percuniary personal gain in granting that contract. In other words was she corrupt? Period!

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  24. 26 Maestro

    I hear you. Yes failing helps us to learn.

    But we can’t always be waiting for things to fail so that we can learn from them.

    It is very important to have ability to ANTICIPATE and to be PROACTIVE. In that way the nation will save itself from unnecessary distractions. When they said the AG’s advice can and cannot be acted upon, they should have anticipated the consequences of not acting upon it. No doubt some things are exceptional, but many things are easy enough to anticipate, if one bothers to think harder.

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  25. The Controversy being raised in the article holds no water. When we seek legal advise on any legal matter/court case, we actually allow the solicitor of Lawyer, Legal Advisor or whoever we may wish to call them to act on our behalf and attend to all matters pertaining to that case. Dora asked Silwamba to advise her. He acted on her behalf. Similarly, the AG is meant to act (legally advise) and attend to all matters pertaining and incidental to the undertaking.

    As usual, some people are trying to mislead us, the public, on a matter which is very clear. Musatizokoneze.

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  26. Mr Skinner was Attorney General. He resigned because he gave advice to Kenneth Kaunda which Kaunda ignored, concerning two Portuguese spies who were freed by the courts on a technicality. In the interest of national security that decision by the chief justice (who was white) was wrong. We suffered several incidents of internal infrastructure sabotage as a result of that from the Portuguese and Rhodesia’s Smith. National interests sometimes will clash against the law. Because of ‘torture’ the Americans got ‘high value inteligence’ for their ‘war on terror.’ The USA has no friends or enemies, it has national interests.

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  27. #35 THE SAINT. Who told you that James Skinner resigned because he gave wrong advise to Dr Kaunda. The facts are that Mr Skinner(MHSRIP) as high court Judge released the said Portuguese soldiers who had strayed into Zambia on the Angolan Border. The action sparked demos by Unip cadres led by one William Banda against the Judge. Dr Kaunda appeared to tacitly supported the demos and this forced Mr Skinner to resign and leave Zambia for his native Ireland. Later on he went to Malawi as Chief Justice.

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  28. Its high time we started to lash with a whip in public all those found guilty of mismanagement of public funds or property. Therefore Dora will be lashed with a whip in public on the 30 May at the Mulungushi Hall, @ 14.hours. Tickets on sale now.

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  29. # 30 mmmm i saw the picture of our 1st lady in LA on red carper in a red bubu and white trousers? but Mrs Santos ni mpopo check Mrs Mswati as well. ha ha ha ha. Ba honey, ba Moze, bana Stevens Deja Vu yes Mrs RB was stand out ku LA google her Thandiwe Banda in LA

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  30. C’mon pipo. Get to it! Lets comment on the 1st lady kabili. Chikomeni Village, I rest my case.

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  31. My understanding of “advice” is that you can take it or leave it, and Dora did not take it. I strongly believe that there are just some high order of people who want to take Dora out and they have succeeded in doing just that. Law by virtue is ambiguous and even the most innocent individual can be apprehended and the opposite is also true. So for Dora case its not the end of the world for her and i think she still has a strong political carrier ahead of her and a resignation is just a way of telling those against her that if you got you gang, i too got mine and the war is not over till its over. Besides, why not just nullify the agreement and ask Dora to make a public apology and we start afresh. Let us practice tolerance my fellow country men and women and learn to forgive and forget.

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  32. “Subject to the other provisions of this Constitution, an agreement, contract, treaty, convention or document by whatever name called, to which Government is a party or in respect of which the government has an interest, shall not be concluded without the legal advice of the attorney general, except in such cases and subject to such conditions as parliament may by law prescribe.”
    The statement says it for me i dont know what the debate is about ‘shall’ then if not whatever actions should be supported by law and parliament. Did she do any of this NO so she breached constitution penalt if presido u r removed same principle 4 ministers

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  33. Tandiwe, Tandiwe ala mama, ndiwe wa mu village, Dont you know that in LA pipo dress to kill.
    I gave you Loreal for your hair ,cos you are worth it , you say no i use saladi. I give you desinger cloths , you want red bubu, i give you nice Manolo shoes, you say i want maliposa.
    Tandiwe, i give up you will never change.

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  34. Mumba Malila is the man of the moment. Such are men we as Zambians need. Men and women who do not compromise what is needed to be done for fear of their lives or jobs.

    Keep it up as it appears that you are a Tonga Bull like other ones who have stood boldly for mother Zambia.

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  35. NCC give us a Constitution of the moment.

    We as Zambians need it for free and fair 2011 elections.

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