• 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

Introduction

SERIES 1: IMPEACHMENT MOTION: President Lungu To Be Impeached For Debt Which Parliament Approved

In the first series of these articles meant to analyse grounds in the impeachment motion as submitted to Parliament, I showed how Member of Parliament, Gary Nkombo, included a ground to impeach the President for debt contracted by the Lungu administration. In this article, I address the issue of monies from the Mukula logs which are now a basis for impeachment of the President.

Analysis of Ground 1.4.1

The particulars of the allegation for impeachment of the President in ground 1.4.1 reads:

1.4. Having regard to provisions of Article 113 and 114(2) of the Constitution which make the President an integral part of Cabinet and which render the President collectively responsible with Cabinet for the decisions of Cabinet;

1.4.1. The President fell into violation of Article 200(1) of the Constitution when Cabinet authorised the diversion of the proceeds from the sale of the confiscated Mukula logs, being revenue property accruing to the Treasury, to the Kawambwa Tea Project under ZAFFICO rather than the said proceeds being credited to the Consolidated Fund as required by law.

In simple terms, what this ground of impeachment state is that monies from the sale of the confiscated Mukula logs should, first, have been credited to the Consolidated Fund before making it available for spending by government, and only with authorisation of Parliament. Hon Nkombo is, in short, stating that the President and his 41 Ministers, should have directed the Secretary to the Treasury and officers to deposit the money from the sale of the Mukula logs into the Treasury Account 99 as opposed to depositing the same into some ‘other accounts’ and authorising the spending of the money to revamp the Kawambwa Tea Project without the authority of Parliament.

Origin of the allegation

The ground arose from the question by Milenge Constituency Member of Parliament Mbulakulima in Parliament on 20th February 2018 who wanted to know why a special account cannot be created so that all the proceeds from the Mukula tree can go into that special account so that the people of Zambia can see what we are doing with the money.

In reply, Minister Jean Kapata stated,

“…an account has been opened through the Zambia Forestry and Forest Industries Corporation Limited (ZAFFICO) and the proceeds from the sale of illegally-harvested Mukula tree are being used to revamp Kawambwa Tea Company which fold up some time back, but has now been given to ZAFFICO to run”

This reply did not sit well with UPND Members of Parliament, in particular Dr. Musokotwane, Lufuma and Kasonso who inquired why the Minister decided to take the money from the disposal of the Mukula logs to the Zambia Forestry and Forest Industries Corporation Limited (ZAFFICO) which they claimed, by law, proceeds from disposal of such properties should have gone into the Treasury Account 99, and only used with approval by the National Assembly.

The Question of the Law

The opposition members of Parliament raised a question of the law on how public finance must be managed by government. Ground 1.4.1 of the impeachment motion pertains to the same question which was raised on 20th February, 2018, except this time it’s directed at the President and not the Minister. What does the law say about where public money can be deposited and utilised?

The relevant provision of the law is Article 200 (1) of the Constitution of Zambia which establishes a Consolidated Fund where all revenues and other monies accruing to the Treasury are credited. However, the authority used by Government to manage and regulate public funds is drawn from an administrative law, the Public Finance Act No. 15, 2004 as well as Regulation 130 of the Financial Regulations of 2006. The relevant Sections of the Act are Sections 2, 13 (2), 15, 19 and 25.

In short, the question whether breached the law by opening an account where monies were deposited and are being utilised to revamp the Kawambwa Tea Project without the approval of Parliament can only be answered by examining the administrative law itself on financial management and regulation of public funds.

In addition to the Consolidated Fund, Section 25 of the Public Finance Act establishes what are called “working account”. The relevant part of this Section reads:

“25. (1)
Where the Secretary to the Treasury considers it expedient to do so, the Secretary to the Treasury may establish funds or working accounts for the purpose of-
(a) the purchase of stores, equipment or livestock for subsequent use or resale;
(b) services rendered or to be rendered by any individual and it is desirable to recover the cost of such services from such other department or individual; or
(c) the making of grants or loans for purposes specified in the estimates of expenditure, or where moneys are made available from any other source for any of the above stated purposes.

In view of the above provision of the law, the opening of a working account through the Zambia Forestry and Forest Industries Corporation Limited (ZAFFICO) and the proceeds from the sale of illegally-harvested Mukula logs were deposited, if sanctioned by Secretary to the Treasury is thus not a breach of the law.

As seen from above Section of the law, the monies deposited into a working account can be used for purpose of the purchase of stores, equipment or livestock for subsequent use or resale and services rendered or to be rendered by any individual and it is desirable to recover the cost of such services from such other department or individual.

Our next key question is, what happens to these accounts and whether government can spend the money from them. To answer this question, the Public Finance Act of 2004, in Section 25(2)(b) reads:

“Section 25 (2)(b)
Each fund or working account established under subsection (1) shall be credited with its receipts, earnings and accruals and any money which otherwise may be made available for the fund or working account may be expended from the fund or working account on the purposes for which it was established.”

In response to Dr. Musokotwane, Mr Lufuma and Mr Kasonso, Minister Jean Kapata explained Government had made a decision to invest or expend this money into revamping Kawambwa Tea Company because it decided Kawambwa Tea Company is a viable company stating it Government policy. Was Cabinet required to obtain any authorisation to expend the money which was lawfully deposited into a working account and not Consolidated Fund?

As seen from the Section of the Public Finance Act, government does not need to obtain parliamentary approval to spend monies deposited into a working account. However, Section 19 of the Act require that all unspent balances standing to the credit of Government bank accounts at the end of every financial year are paid into Consolidated Fund unless prior authority has been obtained from the Secretary to the Treasury for their retention in such accounts. Government cannot, however, spend money deposited into the Consolidated Fund without parliamentary approval.

Conclusion

While the Constitution of Zambia, the Public Finance Act and the Financial Regulations of 2006 generally require all revenue to be deposited to the credit of the Treasury Account (Control 99) at the Bank of Zambia, it was Parliament that enacted the law which allowed Government, through Secretary to the Treasury, to open working accounts where receipts, earnings, accruals and any moneys, in this case, proceeds from the sale of Mukula logs can be credited and for government to expend from the working account without requiring Parliamentary approval.

The key is that the Secretary to the Treasury had considered it expedient to open the working accounts through the Zambia Forestry and Forest Industries Corporation Limited (ZAFFICO) where proceeds from the sale of illegally-harvested Mukula tree were deposited and are being used to revamp Kawambwa Tea Company.

To succeed with this ground of impeachment, therefore, Hon Gary Nkombo and his fellow MPs would have to show that the separate account where monies from sale of Mukula logs are deposited were opened by or with knowledge of President Lungu; that the operation of the same said account are illegal or were opened without consent of Secretary to the Treasury.

In short, there is no illegality for government to open a working account where proceeds from the Mukula logs can be deposited and later spent for purposes for which it was opened. If the intention by Parliament is that every government expenditure must only be deposited into the Consolidated Fund, the solution is to remove the discretion that Parliament has given to Secretary to the Treasury to allow the opening of working accounts and utilisation of monies from the same without prior approval by Parliament.

Has Parliament got capacity to do that? I doubt. Parliament is considering, if not already passed, the Public Finance and Management Bill No. 17 of 2017. The problem has always been the reading culture and research among Members of Parliament when debating these Bills they enact into law and not necessarily government.

By Sishuwa Sishuwa

As many correctly guessed, the minister serving in President Edgar Lungu’s Cabinet who inspired last week’s column, ‘Crisis? What Crisis?’, did not respond to my article that discussed the form, content and degree of Zambia’s ongoing national predicament. It may be that he has little to say or that his thoughts are still evolving. The article attracted several responses, however, mainly positive, but also a few others that I think deserve a fair hearing.
One reader wrote:

‘Dear Sishuwa, I have just finished reading your latest article in News Diggers published today… You talk about the poor and marginalised rural populations. What moral right do you and your elite friends in civil society, especially the Oasis Forum, have to speak for these groups? We know that you write that column to please your paymasters and therefore have to wilfully turn a blind eye to the many great strides that His Excellency ECL [President Edgar Chagwa Lungu] has made to develop this country. I am however glad that you admitted that it is not President Lungu who is to blame for Zambia’s crisis. That was the only truthful thing in your article… Kindest regards, Dora’.

Another email came from someone who called himself ‘Bashi Phiri’. Part of it read:

‘I get unhappy when Zambians like you, who come from a privileged background that enabled you to go to schools such as Oxford, assume that you have the moral right to lecture us on how bad our government is performing. You do not understand the facts on the grounds, otherwise you would appreciate how President Lungu is transforming the lives of ordinary Zambians. But maybe you are afraid that if you wrote about the good things that the President is doing, you may not earn your pay from News Diggers and their sponsors. As for us, it is ECL nafuti nafuti [again and again] even in 2021’.

There were a few other critical emails whose authors either generally echoed the aforementioned sentiments without stating how exactly President Lungu is transforming the country or accused me of being a sympathiser of the opposition, out to paint the administration of President Lungu dark.

I wish those who generously take time to respond to my weekly interventions in News Diggers could try as much as possible to engage with the substance of my writings, to expose the flaws of my arguments, not to attack my persona. Raising ad hominems such as my supposed ‘privileged background’ or accusing me of advancing the interests of my unknown paymasters does little to enrich public discussion of the most salient national issues of our time, especially matters that keep the majority of Zambians surviving below human levels, in this day and age.

I do not often mention my own background in my writings mainly because I do not think it is relevant. My arguments should stand in full on their own merit, not because of who I am. However, it does irritate me when my critics, who themselves know nothing of my life and family history, assume that I myself was born into privileged circumstances and have remained in such circumstances.

I was in fact born in Nalitoya village in rural Senanga, one of the most impoverished parts of the country. The nearest public school I attended, Luandui Primary, was about 17 kilometres away from home in Nalikwanda constituency, another rural backwater. Later, my mother relocated to Kapulanga, an impoverished slum in Mongu where no one should live let alone raise a child. Here, I largely succeeded due to chance and the kindness of others, whose generous efforts enabled me to complete my secondary school. I know all too well the realities of grinding poverty and illiteracy, especially among rural folk, and this makes me all the more determined that it should not be mere chance that rescues people. The government policies and the actions of our ruling political elites that condemn many of our fellow citizens to poverty, disease, superstition, ignorance, hunger, want, and ill health must thus be opposed. I intend to do so with every fibre of my being, as long as I live, and to do so without seeking any financial reward or personal benefits.

Zambia has a great resource in its people, people who are denied the opportunities to develop and exercise their talents by the circumstances of their birth. To be born in rural Zambia today is to be condemned to generational poverty, as the chances of overcoming so many barriers that militate against the rural child are remote. I escaped by chance and through the kindness of strangers, not the efforts of the government. Some of the most determined, hopeful and passionate people l ever met are those l went to school with in rural Zambia. The hopes and aspirations of many of these former schoolmates of mine have been dashed by a system that does not know that they exist, that does not care about or value them. Remove the opportunities l got, l am the neglected rural child. Give them the opportunities that l received, they are me.

One should not assume that I am from a privileged background because I attended the University of Zambia (UNZA) and Oxford University. On the contrary, I am, like many Zambians, a child of struggle and adversity. My father died when I was still a baby. My mother, a rustic self-made visionary who neither stepped a foot into a school classroom nor enjoyed the advantage of a formal job, raised me by herself until 2010 when, owing to a lack of adequate public health facilities in rural areas, she succumbed to a treatable illness while I was still a student. My own personal experiences – a rural child, raised by a single parent mainly an extremely poor mother who never saw the inside of a classroom, who dares to hope and whose life can be shattered or transformed by their place of birth and the decisions of those entrusted with public service – are sadly common to many, many Zambians.

There is an abundance of potential among rural kids but it cannot be unleashed by a national leadership that prioritises the selfish striving for personal gain over the selfless pursuit of the public good. If we keep quiet when the government thinks that the best way of utilising public funds is to buy 42 fire tenders costing US $42 million, when a President declares himself ‘a success’ simply because he has won an election, when our leaders are prepared to sell the very education institution that gave many of us a start in life, when none of us are willing to hold our public leaders to account, then only a tiny number of people will succeed in escaping poverty. Those of us who have succeeded owe our success to those who are left behind. We cannot afford to ignore the injustices of the society we live in or to abandon it for another.

Critics of my previous article have also been quick to accuse me of working to advance sectional interests or a particular viewpoint of my paymasters. Perhaps they cannot imagine being motivated to do anything except for material gain. This is regrettable: I have never claimed nor received a single ngwee for writing this column, something I am sure the editors of News Diggers would be happy to confirm. I do what I do out of a deep conviction, motivated by the belief that if knowledge is worth acquiring, it is also worth sharing. Zambia lacks a public intellectual culture and I started this column in the hope that in my own modest way I could contribute to the creation of one. I have long maintained that Zambia’s intellectuals, though few in number, have a duty to publicly share their knowledge and
expertise. I myself am extremely grateful for the education I received both at UNZA, courtesy of a government bursary, and later as a Rhodes Scholar at Oxford University, but remain conscious and indeed outraged that such opportunities remain so limited for my fellow citizens. It is incumbent upon those of us who have received a good education to share the fruits of such benefits as far as we can with others. For me, one way of doing so was returning home to teach at UNZA, one of the educational institutions that gave me a start. I also periodically return to my former schools in rural areas to share with today’s pupils my experiences and the opportunities ahead.

Writing this weekly column is a privilege that I do not take for granted, one that I carry out in my few moments of spare time between teaching and marking the work of several hundred undergraduates and master’s students, and conducting my own academic research. It is my belief that intellectuals must act out of conviction, based on understandable reasons and the intrinsic value of their actions, not out of anticipation of material gain, political or personal favours. This is especially important in the current deteriorating political climate in Zambia as our present government threatens freedom of speech and freedom of expression. I joined News Diggers as a columnist in June 2017 to contribute towards the protection of our free press. Zambia’s once vibrant tradition of private media had been almost totally stifled when News Diggers was founded. Following the closure of The Post, the only remaining major private newspaper outlet largely adopted a pro- government position. A critical free press willing and able to hold the powerful to account is the lifeblood of any functioning democracy. News Diggers, I thought, could play that role and I have since endeavoured to contribute towards their efforts. This is not a task I envisage or wish to do alone. Other educated Zambians must do their bit to strengthen our fragile democracy and help our fellow citizens who have been failed so many times by successive governments.

The Author describes himself as the last Zambian nationalist. He is obsessed with all things Zambian, particularly politics and history which he teaches when UNZA is not closed. Sishuwa is a cadre of Nkana Football Club and loves Keith Mlevu’s 1976 song, “Ubuntungwa”.