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 ]