- SERIES 1: IMPEACHMENT MOTION: President Lungu To Be Impeached For Debt Which Parliament Approved
- SERIES 2: IMPEACHMENT MOTION – Did Government break financial regulations and the law on the monies from Mukula logs?
- SERIES 3: IMPEACHMENT MOTION – Is The Frustrated Fire Tender Petition a Basis for Members of Parliament to impeach the President?
By Isaac Mwanza
In the first and second series in which I offered an analysis of the grounds tendered by Hon. Garry Nkombo, the UPND member for Mazabuka constituency, I discussed how parliament in its motion wanting to impeach the President of the Republic on the grounds of debt contraction, would have to show that the debt in question, did not have the approval of Parliament and was therefore unlawfully contracted, or was contracted outside the parameters set in our constitution and our laws. Parliament would also be required to show that it is illegal for government to deposit public funds in a working Account in light of Section 25 of the Public Finance Act.
In this series, I address the issue of procurement of the 42 fire tenders and whether the process by which they were acquired, can provide grounds as a basis for a motion to impeach the President. How the procurement officers handled the tender process is beyond the scope of this discussion and this author confirms that he has had a change to look at some of the procurement documents pertaining to the tender process. He still disagrees with the handling of the process by procurement officers in the Ministry of Local Government.
Analysis of Ground 1.4.3
The particulars of the allegation for impeachment of the President in ground 1.4.3 reads:
1.4.3 That the President fell into violation of Articles 90 and 198 of the Constitution when Cabinet authorised the Ministries of Local Government and Health to procure fire tenders and ambulances, respectively, at an exorbitantly high cost contrary to the principles enshrined in Articles 90 and 198 which require that the executive authority including the use of public resources is exercised prudently and in manner compatible with the principles of social justice and for the peoples well-being and benefit.
Put simply, the motion accuses all members of the Cabinet of authorising the procurement of fire tenders and ambulances at an exorbitant cost. From the outset, I must mention that this ground is too general to be an allegation against one person as it generalises the authorisation. I will not attempt to look at the issue of ambulances as the same prinnciples in fire tenders would apply.
Origin of the allegation
On Tuesday, 19th September, 2017, the Minister of Local Government, Hon. Vincent Mwale MP, issued a Ministerial statement in the National Assembly of Zambia to address concerns raised by some members of the public, following the event of 13th September, 2017, at which Her Honour the Vice-President of the Republic of Zambia, Mrs.Inonge Wina, officiated at the handover of 42 fire trucks to local authorities; it was reported that the said fire trucks had been procured at a cost of US$42 million.
The decision to procure these fire trucks, dates back to 4th May, 2012 when the President at the time, the late Mr Michael Chilufya Sata, made a public commitment to invest in the fire and rescue services, but it was not until September, 2015 that the Ministry of Local Government proceeded to advertise the tender for the supply of the forty-two fire trucks, at the end of which process, a company known as Grandview International, was awarded the tender.
Responding to a question from the MP for Milanzi Constituency MP, the Hon. Mr. Banda who wanted to know who was responsible for the procurement process in Government, the Minister of Local Government, Hon. Vincent Mwale, stated that all procurement in the Government is done by procurement officers, who are the technocrats. At the ministry, technically competent people are employed to handle procurement. It is not done by elected officials, nor is it a function of the Cabinet or of any Minister.
Minister Mwale emphasised this point by reference to the Ministerial Hand Book which stipulates that no minister is allowed to have anything whatsoever to do with government procurement processes. This function is to be carried out specifically by those employed to carry it out, that is, Permanent Secretaries, who are the Controlling Officers, in conjunction with the appropriate, competent officers employed for that purpose. Beyond the government officers, the authority that deals with government procurement is the Zambia Public Procurement Authority (ZPPA) which is established by an act of parliament for that purpose.
The Member for Mazabuka, Hon. Garry Nkombo, who is the mover of the impeachment motion, stated that the procurement process of the fire tenders had glaring irregularities, and asked the Minister to confirm whether he was averse to the Speaker constituting a Committee, preferably the Committee of Economic Affairs, to carry out a thorough review on this particular procurement. The question was lost due to the many issues he raised.
The Member for Roan and seconder of the motion, Hon. Kambwili, who at the time of procurement of the fire tenders was also a Cabinet minister, asked whether it was important to procure forty-two fire engines worth US$42 million when the economy was in dire straits. He later accused the Hon. Minister of Local Government, at the time of the procurement in question, of having received three high value motor vehicles from onep Bokani Soko who, according to Hon. Kambwili, was the owner of the company which was awarded the tender to supply and deliver the fire tenders.
In reply, Minister Mwale reminded the Member for Roan, that both he and the other Ministers were all part of the Cabinet and Government in 2015 when the decision to procure the fire tenders in question, was made and went through those economic problems together, but that did not cripple the operations of the Government. He said although government had to scale-down on certain things due to a lack of funds, the Fire Department, which had not seen any significant investment up to that time, was given priority by the Ministry Local Government adding that perhaps. In accordance with its priorities, the ministry did justice to the department
Hon Kambwili who was a Minister of another ministry, then, may have equally given priority to other areas in his ministry, but the Ministry of Local Government gave priority to the Fire Department..
Around 30 September, 2017, a total of 64 members of parliament petitioned the Speaker of the National Assembly Dr Patrick Matibini to appoint a committee that would help investigate the procurement of the 42 fire tenders at $42 million. Around 10 October 2017, when he was leaving for Eastern province, President Lungu stated that petitioning over the purchase of the fire trucks and the construction of the Lusaka-Ndola dual carriageway clearly showed that MPs do not understand that such matters do not fall under the Speaker’s authority. It was the President’s view that the matter was not within the Speaker’s jurisdiction.
It would now appear that the 64 Members of Parliament, having failed to get to the bottom of this matter by way of a parliamentary inquiry, have now resorted to filing a petition to remove the President of the Republic from office, for what they termed cabinet authorisation of the Ministry of Local Government to procure the 42 fire trucks at US$42 million
The Question of the Law
As stated by the Minister of Local Government, Zambia has a law which governs public procurement, which I will not quote since the allegation pertains to violation of the Constitution by the President. The relevant laws must be the Ministerial Handbook, the Ministerial Code of Conduct as well as provisions of Article 91 (2) 93 and 198 of the Constitution of Zambia which read:
The executive authority of the State vests in the President and, subject to this Constitution, shall be exercised directly by the President or through public officers or other persons appointed by the President.
(1) A decision or instruction of the President shall be in writing under the President’s signature.
(2) The signature of the President on an instrument shall be under Public Seal.
The functions of Cabinet are as follows:
(1) (a) approve and cause to be implemented Government policy;
(2) Cabinet shall take collective responsibility for Cabinet decisions.
The interesting part of this allegation is that the seconder of the motion, Hon. Chishimba Kambwili, was part of Cabinet at the time that the Cabinet made the decision to authorise the procurement of the fire tenders and the time of the actual procurement. Yet there is nothing on record to show that he objected to the authorisation of the procurement in Cabinet, or that he expressed his reservations at any stage of the process. Maybe we shall see that evidence when de debates the impeachment motion and. hopefully, lawfully discloses how cabinet voted on this matter.
In sum, Hon. Kambwili in his capacity as a member of the Cabinet and a Minister in the government at the time, was part and parcel of the procurement, from start to finish. It is a curious situation that Hon. Kambwili should second a motion which seeks to establish and lay culpability on the President, for a decision made by a Cabinet of which the seconder of the motion, Hon. Kambwili was part and parcel.
The NDC Consultant now seeks to make his former cabinet colleagues culpable without taking any responsibility himself. In other words, Hon. Kambwili now seeks to put on trial, his own accomplices but, in order to avoid culpability himself, it would appear that, by a clever sleight of hand, he removes himself from culpability by removing the entire cabinet from the case and, instead, he has persuaded his fellow petitioners to spare him by laying the blame at the President’s feet!
As a full and active member of the Cabinet at the time of the procurement, Hon. Kambwili is equally culpable of the malfeasance he alleges against his former colleagues. At best, his secondment of the motion should be declared invalid and, at worst, the motion itself ought to be declared invalid for want of a valid seconder.
The question that Members of Parliament would need to address, in order to have this allegation substantiated, is for them to show the actual price of fire tenders as opposed to the amount which was paid. They also need to show that indeed the President violated the Constitution by turning himself into a procurement officer or unduly influencing the tender process. As stated from the outset, this allegation is too general to form the basis for impeaching a popularly elected sitting President, where it fails to disclose, in clear terms, how the President violated the Constitution.
This allegation in the impeachment has been taken to Parliament because the movers of the motion probably understand how difficult it is to prove before a competent court of law that the President violated the Constitution in the procurement of fire trucks when he was not a procurement or controlling officer. The only option for them to deal with the President, is to invite a vote from two thirds of Members of Parliament who may not address the question of evidence in the way that the courts do.
As an example, I would refer to the case of the removal of President Frederick J T Chiluba’s immunity from prosecution in terms of the repealed Article 43(3) of the Constitution before its amendment on 5th January 2016. In that case, late President Levy Mwanwasa SC, had provided what he purported to be evidence of his predecessor’s malfeasance and used it to lift late Fredrick Chiluba’s immunity, which we all supported.
Despite what appeared to have been overwhelmingly clear evidence that President Chiluba had violated the Constitution which formed the basis for Parliament to vote to remove his immunity, the late Fredrick Chiluba was acquitted by the Court because the prosecution, using the evidence adduced in parliament, failed to establish a case against him beyond reasonable doubt in accordance with the relevant statutes. President Chiluba’s two co-accused persons were however found to have had culpability as public officers, and were accordingly found guilty, convicted and sentenced.
More recently in 2017, the former Zambia Railways Limited Managing Director Prof. Clive Chirwa was acquitted by the Lusaka Magistrate’s court on two counts of abuse of authority of office and one count of failing to declare interest while the Court convicted former ZRL Director of Finance Regina Mwale on two counts of abuse of authority of office when she authorised payment for accommodation for Prof. Chirwa at Fallsway Apartments without Board approval.
The two cases must remind us that normally, the problem in procurement is as a result of failures by the procurement or controlling officers to do what is right.
In order for the charge to be valid, the petitioners must show that in its approval of the procurement, Cabinet and in particular, the president, expressly gave as to the specific type and price of the fire tenders to be procured as per Article 93 of the Constitution. They must also show that the officers gave the relevant professional advice as to the correct procurement procedure, that they had advised the president and cabinet of their professional evaluation and had alerted them to the cost implications, but we’re overruled and ordered to proceed as directed by the president.
In reliance on ground 1.4.1, it ought to be obvious that there can be no case if Cabinet’s approval did not go beyond the usual decision authorising the Minister of Local Government to work with the ministry of finance in facilitating the procurement of fire tenders. The question as to how that approval is applied by the relevant officers in the relevant ministries and by the Zambia Public Procurement Authority, are matters for relevant officials, not Cabinet and most certainly not the President, who has absolutely no power over the finances of the Republic or its procurement procedures and processes. Therefore to get attempt to make the President culpable for matters which are completely outside his purview, is quite absurd, to say the least.
While it is acknowledged that there could have been serious lapses in the procurement of the fire-tenders, there is utterly no basis for making the President responsible for the failure of processes and procedures which, by law, are the responsibility of specific officers whose duty is to report through the assigned Controlling Officers. Parliament has a duty to hold procurement officers to account through the Controlling Officers and should not shirk its responsibilities of public oversight by shifting the blame onto the office of the President which has no involvement whatsoever in the procurement process.
It is very doubtful if this general allegation levelled against the President for the collective decisions of cabinet in authorising procurement of fire tenders and ambulances forms a sound basis for a motion of impeachment against the President. To my mind, this ground shows that Parliament has failed in its role as our (public) watchdog tasked with the role of overseeing the prudent use of the resources which parliament itself appropriates and allocates to the public service for the procurement of public goods and delivery of public services.
In sum, then, although the petitioners purport to make ground 1.4.1 one of the grounds for impeachment of the President, it amounts to nothing more than a fishing expedition; like other grounds referred to, the purpose of this motion would appear to be a political ploy intended to question the ability of the President and his Patriotic Front, to govern. It is not really about President Lungu, as nothing has been produced to show even remotely, how this procurement, amounts to a violation of the Constitution, in view of the fact there is nothing in the petition to show that the President was, or had at any stage of the procurement, been personally involved and had thereby, violated the Constitution.