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Tuesday, December 1, 2020

Former Solicitor General defends Judge Musonda over Siliya’s case

General News Former Solicitor General defends Judge Musonda over Siliya's case

Former Solicitor General, Sunday Nkonde says there is nothing sinister about High Court Judge Philip Musonda’s judgment quashing the findings of the Dora Siliya tribunal.

Mr. Nkonde said persons criticising the ruling are merely bent on distorting facts of the matter.

He told ZNBC news in Lusaka that a precedent exists where findings of a Supreme Court judge led Tribunal have been quashed by a High Court Judge.

Mr. Nkonde cited the Tribunal findings of the David Lewanika Tribunal against former Ministers Katele Kalumba, Peter Machungwa and Golden Mandandi.

He told ZNBC news in Lusaka that a precedent exists where findings of a Supreme Court judge led Tribunal have been quashed by a High Court Judge.

The former Solicitor general who was one of the lawyers under the David Lewanika Tribunal said a single high court judge overturned the findings in a similar fashion.

He urged lawyers to help in enlightening the public who risked being misled on legal matters.

Mr. Nkonde has observed that the advice of the Attorney General is not mandatory.

Mr. Nkonde said during his service as Solicitor General his advice to the government was sometimes openly rejected without any public out-cry.

[ZNBC]

55 COMMENTS

  1. NI Vaseline fimo fimo, he is just giving A legal opinion and note that no lawyer has argued that what he did was out of order. The high court is a court of appeal and the high court judge made a decision well within his jurisdiction.

  2. It needs to be understood that when something go to the judicary, it will be decided using legal and not moral arguments

  3. It looks like all those who have nothing to do want to take this opportunity to become rich by joining MMD. They have realized that one does not need to be qualified for any position to be an MMD official, but to just be good at defending the president who is failing to handle the problems currently being faced by the nation. Ikalenifye!

  4. Good article the majority of the people disgruntled by the outcome know completely zilch about law. People though the courts were for settling emotional disputes a hard lesson has been learnt, next time try village headmen. It’s also worthwhile to note how Harrington’s lawyers misled him in thinking he had a good case, zambian lawyers will take you to the bank even though they know deep down you will lose.

  5. He has just given his legal intrepretation, which while annoying, i tend to agree with. Its quite simple , the law says that you can appeal to the high court against the rulings in the high court and this was done. As for legal advice, by virtue of it being advice, one is at libert yto take it or not. Maybe if it read authorisation from the AG, but that again makes him more powerfull then the minister

  6. #8 Positivist Pa Zed. Law is some area which sometimes makes me wonder whether it is just. I also agree with you that while it pains, we need to know that lawyers themselves know how to handle the issue at hand. For example, how does one explain the fact that a criminal can walk to freedom just on technicalities like prosecution bench’s absence at the time of trial? Rather than sending the criminal back to jail he would be freed all in the name of justice delayed is justice denied or whatever the phrase. It is so annoying. I am not supposing that Dora should be found faulty – she has a right to be heard, just as burglars, murederers, Kapokos, Chilubas do have that right. But that is what law is, so we just have to leave with it.

  7. What is fun about this setup is that the High court may be a court of appeal. However one can also appeal the High courts ruling to the Supreme court. this is where it becomes dicey because among the 7 Supreme court justices will be Justices Chitengi and Chirwa, two of the characters on the tribunal. I would like to appeal to Sunday Nkonde and other lawyers to own up that this is a major cockup and no amount of so called rationalisation will make this right. Just go back to the drawingboard and come back with judicial structures that make sense. Zambian lawyers are some of the worst in Africa if not the world. They are easily manipulated by politicians to come up with ill defined and contradictory statutes. Lawyers in Zambia are nothing but enablers of dictatorship.

  8. AT LEAST CHILUBA DID NOT DIRECTLY INTERFERE WITH COURTS. REMEMBER HIS TWO GOOD FRIENDS WERE FOUND WANTING BY A TRIBUNAL. THESE 2 GENTS MUSHOTS AND KATYOKA WERE NEVER ALLOWED BACK IN GVT THIS WAS INSPITE OF CHILUBA’S “HUMBLE” EDUCATION. WHEN THE POST CALLED HIM A THIEF HE NEVER USED ZP BUT TOOK THE MATTER TO COURT.

  9. Iwe chi former fimofimo, we annoyed because what Dora did stinks. If she was single sourcing using her own money there would have been no public outcry. That is our money she committed. Why should we have to part away with K10bn.because of some crappy evaluation? Where have u ever seen a contract where sum1 gets a cut from the sale of ur property just because they evaluated it? They evaluate, u pay. End of matter.

  10. Chiluba created the tribunal to order the clerk to give his ministers K2 billion of stolen tax payers money which was forwarded to Sata to give to delegates at the MMD convention so that they vote overwhelmingly for FTJ and get away with the crime with only 50 push ups and minor demotions. Sata got away with a “well done” pat on the back and the clerk was never fired for involvement in the crime. The tribunal is a sham to prevent erring MP’s from seeing the inside of a jail cell or court room. Dora took herself to the court room and was aquitted of the false allegations made by Malila! The court heard that Dora did infact seek the advice of the Attorney General who delegated the responsibility to the Solicitor General. Dora did not infringe Article 54 of our constitution. Hard to…

  11. Mr Mulenga caught Mr Tembo in his bedroom with Mrs Mulenga. Mr Mulenga grabbed Mr Tembos trousers as evidence. When they came to the local court, Mr Tembo was wearing trousers exactly as the one grabbed by Mr Mulenga. Seeing this the court justices accused Mr Mulenga of framing innocent Mr Tembo and the former lost the case. However he asked for divorce which was quickly granted. Later that afternoon Tembo married former Mrs Mulenga at the same court. Lawyers please explain to me a layman what Mulenga should do.

  12. #7 slumdog,what beats my mind is the judges that costituted the tribunal were very senior to the judge who had to undo the findings of the tribunal.Much as we are told that the tribunal is inferior to to the high court.The supreme court judges credibility is at stake here.Judge Musonda is smarter than them,that would be my conclusion as a layman.You will do well to me if you clarify this.

  13. Guys these lawyers are now confusing the public, where is LAZ? If they can come out and give an independent opinion. we are not lawyers but we ve followed this issue from the very beginning.

  14. #14.Deja Vu. You made me laugh, on quite a serious matter though. I think Mr. Mulenga is a victim of some sinister scheme bent on punishing him.

  15. Zedson,
    Its not about the tribunal justices being from the supreme court but rather the ranking of the tribunal in the Zambian legal system. At the top is the Supreme court, then the high court followed by tribunals such as the one constituted to probe dora. So any findings from the tribunal can be challenged in the high court.

  16. #15 zedson, the supreme court judge’s seniority is useful if in the supreme court outside it he is just like any other experienced practicioner. When the supreme court judge sits at a tribunal he is not a supreme court judge he is a tribunal judge . Wherever that judge sits is where he will draw his powers for example fif he sits at an arbitration he is not a supreme court judge he is an arbiter. In more developed legal systems judges are not allowed to do this but I don’t know why zambians allow it because it’s stirs up a conflict of interest and undermines judicial impartiality. In my opinion the supreme court judge should have had foresight and foreseen this and refused to sit at the tribunal to preserve professional integrity

  17. To add on no. The credibility is not really an issue, the supreme judges sat in a lower court and in the legal profession, the right to appeal is well understood and appreciated. So the will simplt said the Judge erred> Mbundi # 11, lawyers worldover are not the most loved people. However the problem I see here is the fact that the law permits a supreme court judge to sit in the tribunal.

  18. I have just one request – could honorable Judge Musonda please rule against Dora’s red lipstick

  19. # 20. So, even a medical consultant if he’s found screening patients in the outpatient department then he ceases to be a consultant and any diagnosis and treatment decision he makes is equivalent to that of his juniors unless he had seen the patient in his consulting room or the hospital ward? Heck!

  20. Monalisa’ssyndrone

    Heres a better analogy imagine a general who runs an army decides to go and be a kamalonda with only a .45 pistol. While the general is kamalondaring imagine a sargeant comes along with a ak 47 and robs that house. Would you be saying how come that general who has jets and tanks could not fight off the sargeant, the general is superior. truth is that general wasn’t supposed to be a kamalonda because he knew there was people out there that could gun him down. That general was supposed to stay at arakan barracks where his power and belonging make sense…….Thats the best way I can put it

  21. #25 Slumdog, Your analysis is confusing me a bit. You say the supreme court judge should have had foresight? But this tribunal was constituted by the Chief Justice ( i stand to be corrected). Why would the CJ deliberately put his collegues in the line of fire and expose them to ridicule? Help.

  22. Good article by Mr Nkonde but he should realise that his advice was being rejected possibly because of lack of substance.
    The laws of the land are supposed to be dynamic and move with time such that the Attorney General’s advice should be mandatory as he/she is the government advisor. Otherwise, lets scrap the office and divert resources elsewhere.

  23. The ridicule comes from the decision of the tribunal not the standing.I don’t think a judge of the supreme court should sit at lower courts but thats just my opinion. If the decision was a sound and sensible one the high court wouldn’t have accepted the appeal. I don’t know much about the zed system but the minute that supreme court judge sat at the tribunal he must have known of the consequences. The CJ probably didn’t know what the tribunal would bring but it’s exposed a huge flaw

  24. No. 15 Deja Vu; Mulenga should not have bothered with Tembo’s trouses. Mulenga should have dragged Tembo buck naked to the Court and not have bothered with the trouses. That way the naked truth would have been exposed and seen.

  25. # 24. Slumdog Shalapungu. Don’t complicate things, tekanya, pembela first. The Supreme Court judges in this case had ‘jets and tanks in their cranium that could fight off the sergeant.’ They are superior. They know the law much better and are better placed to make a fair judgment based on the interpretation of the law. If as a patient I was to be attended to by a consultant in the outpatient department, I would be very pleased with the fact that the diagnosis and treatment decision or any other advise I may have received is probably the penultimate. We are not saying that a consultant cannot miss a diagnosis. What we are saying in this instance is that we need to look at the case again and come up with the correct diagnosis which is beneficial to the patient.

  26. The supreme court judges are only superior when they are a group and in the supreme court. Outside it they assume whatever power they are given by the court they stand. Just because one supreme court judge who didn’t have have his supreme powers thinks dora is guilt doesn’t make the decision right. Supreme court judges in the supreme court always disagree with each other most the time.

  27. Yes # 30 but , if the consultsnt advised as a general practitioner , his diagonisis could be subject to a second opinion from a medical practitioner of lower standing. If you find the guru at in – patient, the doctor at the admision will make his own decision that would supercede the previous analysis done

  28. Good and nice evidence on your “Mr. Nkonde cited the Tribunal findings of the David Lewanika Tribunal against former Ministers Katele Kalumba, Peter Machungwa and Golden Mandandi” and “The former Solicitor general who was one of the lawyers under the David Lewanika Tribunal said a single high court judge overturned the findings in a similar fashion“. But why is it that ZNBC only reports news regarding pro-MMD GRZ statements and possibly characters?

    Following “Mr. Nkonde has observed that the advice of the Attorney General is not mandatory” is this normal or we need NCC to make it clear as to what is needed? If this is normal, why not scrap it completely from the duties of an Attorney General?

    Keep well brotherman.
    __
    Prevention is better than cure.

  29. But again lets avoid seing things from only our perspective. The high court is the court of appeal from the tribunal. Period, thats law and if Dora was cleared, its likely that the petitioners would have appealed if they felt they case has merit

  30. The High Court can clear someone of any wrong -doing on a technicality, but that does not mean RB should throw morals out through the window. The Dora sage will come to haunt him . Watch this space.the 27 billion scam is a snapshot of the Mwanawasa reign.

  31. YES # 37, you need to seperate the various facts, technically Dora did not breach the constitutoin or abuse priveldges as a Minister, but that does not make her an angel either or innoceont of any moral wrong doing. Now the issue is was the re appoinment in order. Unfortunately morals are personal and what you see as wrong may be your brothers medicine

  32. What has killed the future of many young people here now wholly trapped in useless blogging stint is failed reading, research and critical thinking culture married with ignorance even on basic legal interpretations.Late Mwanawasa was one leader that defied the AG and solicitor General offices and publicly on political rallies called on them to resign from his Government and positions.Thumps up State Council Nkonde.A tribunal is administrative and not a court of law.Its recommendations can be overturned.

  33. I must say that I am impressed with the level-headedness with which Shalapungu and Chanda are analysing this issue. Even though it is clear they have taken opposing views of the matter, the two have attempted to put them across in civility. Such a refreshing read unlike the usual annoying insults, exposure of extreme ignorance and tendancy to end at calling every issue a ‘fimofimo’ (and really just sounding dull in the end).

  34. # 37. Kapyuku. I agree with you. Look at the scenario presented above by Deja Vu. This marriage should not have taken place going by the rules of natural justice. It was morally wrong for the court to allow Mrs. Mulenga to get married to Mr. Tembo when the fact of the case are evidently clear now that the two had something going on between them.


    Sent on a phone using T9space.com

  35. Now PF Chairman for local Government Winter Kabimba has called on PF cadres to get violent against Zambians and their institutions.Kabimba speaking to cadres said get violent if you are not getting the power and fruits you want.

  36. #44 Easy take it easy don’t just say things before you get the facts right. He was referring to the current strikes by teachers, Nurses, Doctors and other civil servants. Workers are fighting for their survival. Don’t lie Easy

  37. Pafwenamwine, state here if i have lied that he has asked them to go violent against Zambians and institutions if they don’t get what they want.

  38. 45 afwenamwine greetings. I hope you have refrained from insulting after that lecture I gave you.
    _
    Prevention is better than cure.

  39. The Law is being distorted in Zambia because most of the key vocal players are non-practicing full time. Some are newly qualified and others are politicians. Law like Medicine needs whole time commitment. It is not advisable for doctors to treat themselves because of bias. Similarly lawyers who have an interest cannot provide objective opinions.

  40. Ba Moze if you are looking for the book ‘Bootilicking made Simple’ There is a newer version written by Ben Tentamashiba is it actually co-authored with Mike Mulongoti. It has all one need to know about licking someones Asi clean.
    I am sure the former solicitor general has gone through its pages.

  41. Winter Kabimba has just encouraged lawlessness and vigilanteism as quoted in the Post. This man is a lawyer and he is criticizing a High court judge! This is unheard of. What will happen when he represents a client in Judge Musonda’s court? I would like to suggest that all lawyers who engage in politics should have their practicing licenses suspended. They mislead the public. This goes for the VP as well.

  42. Ba Moze Other Books that you need to read:

    1.How to give to ruling President Headache by Micheal Sata
    2,The Adventures of Rigging by Vernon Mwaanga
    3.Hooking the President By Dora Siliya
    4.Dribbling the Judiciary by FT Chiluba
    5.First Lady’s row made Simple by Thadiwe
    6.To live and Die LSK by Castro Chiluba
    7.Get Rich or Die poor by Henry kapoko
    8.Ukufilila Munsenga by Rudo Kapoko

    As soon nas I get hold of newer books I will keep you posted

  43. Sunday Nkonde is just looking for a job. The Musonda Philip saga has just shown clearly that the Zambian legal system is compromised and I agree square on with Kabimba on this score. I also agree with the galant former judge Kabazo Chanda, its asking for arnachy in on the bench to have an inferior judge undo the verdicts of supreme court justices. It’s like asking Gen. Ben Mibenge to salute Captain Solo, it just doens’t work. Lawyer in Zambia have been discovered for what they are, intellectually floatitious harlots.

  44. Sunday Nkonde’s pronouncements just show the extent to which opportunism has crept into our judicial syste. How can one honestly comprehend such forked legal reasoning coming from someone who once held such a high post in our legal system? The only reason could be that he is angling himself to take over from Malila whom Banda is hell bent on firing today. I just hope the next president is going to put lawyers where they belong, the sewer hole.

  45. Political prostitue # 17. Manje uganiza kodi LAZ iliko? Sunday Nkonde’s Legal opinion simply shows how decayed our law profession is in the country. Have you ever wondered how a buch of learned counsels could vote in a very important descision making ‘Referendum’ and you have more spoilt ballots than in an election in Shan’gombo. It sucks!!!!

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