2. PREAMBLE (i) The Report is in two volumes. The first volume contains record of the proceedings verbatim as well as the documents tendered and gathered by the Tribunal. The second volume is a summary of the findings of the Tribunal and the conclusion. (ii) The complaint was lodged by Messrs Brebner Changala and Lucky Mulusa in Lusaka. (iii) The Complainants sought the Tribunal to determine the following questions:- (a) To investigate whether or not the Minister of Justice abused his Office when he used a Government legal opinion offered to him in his capacity as Minister of Justice by the Learned Solicitor-General to pursue a private agenda of the Patriotic Front Party and subsequently by a private litigant. (b) To investigate whether or not the Minister of Justice breached his Oath of Secrecy when he released a classified Government legal opinion for use by the Patriotic Front and subsequently an individual litigant, Leonard Banda.2 (c) To investigate whether or not the letter copied to the Acting Chief Justice by Hon. Wynter Kabimba, on a Patriotic Front letter head, attaching thereto a legal opinion of the Solicitor-General, constituted an interference with the independence of the Judiciary as guaranteed by the Constitution. (d) To recommend appropriate action on the findings of the investigations to the Government. The Complainants sought to fortify the foregoing questions by relying on Articles 48, 52, 89 and 91(2) (3) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia. The said Articles respectively provide as follows: Article 48 48. A Vice-President, Minister or Deputy Minister shall not enter upon the duties of his office unless he has taken and subscribed to the oath of allegiance and such other oath for the due execution of his office as may be prescribed by or under an Act of Parliament.3 Article 52 52. All Ministers and Deputy Ministers shall conduct themselves, during their tenure of office, in accordance with a code of conduct promulgated by Parliament. Article 89 89. The Speaker of the National Assembly, before assuming the duties of his office, and every member of the National Assembly before taking his seat therein, shall take and subscribe before the National Assembly to the oath of allegiance. Article 91(2) and (3) (2) The Judges, members, magistrates and justices, as the case may be, of the courts mentioned in clause (1) shall be independent, impartial and subject only to this Constitution and the law and shall conduct themselves in accordance with a code of conduct promulgated by Parliament. (3) The Judicature shall be autonomous and shall be administered in accordance with the provisions of an Act of Parliament.4 The Complainant also relied on Section 21(1) (b) (c) of the AntiCorruption Act No. 3 of 2012 which is to the following effect: 21 (1) A public officer commits an offence who- (b) uses that public officer‟s position, office or authority or any information that the public officer obtains as a result of, or in the course of, the performance of that public officer‟s functions to obtain property, profit, an advantage or benefit, directly or indirectly, for oneself or another person; (c) uses the public officer‟s position, office or information to obtain, promise, offer, or give an undue advantage to oneself or another person, directly or indirectly, in order for the public officer to perform or refrain from performing the public officer‟s duties; The Complaints further relied on sections 4 and 11 of the Official Oaths Act, Chapter 5 of the Laws of Zambia which provides that- 4. A person assuming the Office of Vice-President, Speaker of the National Assembly, Minister or Deputy Minister shall not perform the duties of his office unless he has taken and subscribed the Oath 5 of Allegiance as set out in the Sixth Schedule and the Oath of his office as set out in the Second, Third, Fourth and Seventh Schedules, respectively. 11. (1) The President may by statutory instrument- Powers of the President (a) specify any office to which a person appointed, elected or nominated, shall not act or perform duties of that office unless he has taken and subscribed the Oath of Office as set out in the Seventh Schedule; (b) require any person, before performing the duties of any other office, to take and subscribe, any oath prescribed in this Act before the official specified in the instrument. (2) Notwithstanding the provisions of section eight the President may require any person attending directly or indirectly on the President or engaged in any work for the Republic to take and to subscribe, any oath prescribed in this Act before any official the President may designate.6 Lastly, the Complainants cited Part II of the Parliamentary and Ministerial (Code of Conduct) Act, Chapter 16 of the Laws of Zambia which we have reproduced belowPART II CODE OF CONDUCT APPLICABLE TO ALL MEMBERS CODE OF CONDUCT APPLICABLE TO ALL MEMBERS 3. (1) The provisions of this Part shall constitute part of the code of conduct for Members for the purposes of the Constitution, a breach of which results in the vacation of the seat of the Member concerned. (2) The provisions of this Part, in their application to Ministers and Deputy Ministers, shall constitute part of the code of conduct for Ministers for the purposes of the Constitution. 4. A Member shall be considered to have breached the code of conduct if he knowingly acquires any significant pecuniary advantage, or assists in the acquisition of pecuniary advantage by another person, by-7 (a) improperly using or benefitting from information which is obtained in the course of his official duties and which is not generally available to the public; (b) disclosing any official information to unauthorised persons; (c) exerting any improper influence in the appointment, promotion, or disciplining or removal of a public officer; (d) directly or indirectly converting Government property for personal or any other unauthorized use; or (e) soliciting or accepting transfers of economic benefit, other than- (i) benefits of nominal value, including customary hospitality and token gifts; (ii) gifts from close family members; or (iii) transfers pursuant to an enforceable property right of the Member or pursuant to a contract for which full value is given. 5. A Member shall not speak in the National Assembly, or in a committee thereof, on a matter in which he has a direct pecuniary interest unless he has disclosed the nature of that interest to the 8 Assembly or Committee. Member to disclose pecuniary interest to National Assembly 6. (1) Where a Member has an interest in a contract that is made, or is proposed to be made, by the Government, and has not made a sufficient declaration under subsection (4) in relation to the contract, the Member shall as soon as practicable make a declaration of his interest in relation to the contract, specifying the nature and extent of his interest. (2) Where- (a) immediately before the commencement of this Act, a Member has an interest in a contract that has been made by the Government; and (b) the contract is not completely performed by all parties within thirty days after the commencement of this Act; the Member shall, within thirty days after the commencement of this Act, declare the interest in accordance with this section.9 (3) A declaration for the purposes of this section shall be made to the Chief Justice in writing. (4) A declaration by a Member that- (a) states that he has an interest in a specified body corporate or firm; (b) specifies the nature and extent of the interest; (c) where the interest is a shareholding or partnership, specifies the proportion of the ownership of the company or firm represented by the shareholding or partnership; and (d) states that he is to be regarded as interested in any contract which may, after the date of the notice, be made with the Government by that body corporate or firm; shall be a sufficient declaration of interest in relation to any contract so made unless, at the time the question of confirming or entering into any contract is first taken into consideration by the Government, the extent of his interest in the body corporate or firm is greater than is stated in the declaration.10 (5) For the purposes of this section, a Member has an interest in a contract if- (a) he will derive any material benefit, whether direct or indirect, from the contract; or (b) one party to the contract is a firm or body corporate and he has a material interest, whether direct or indirect, in the firm or body corporate. (6) For the purposes of paragraph (b) of subsection (5), a Member shall not be considered to have a material interest in a body corporate by reason only that- (a) he holds debentures of the body corporate; or (b) he holds shares in the body corporate with a total market value of less than the annual emoluments from office of the Member concerned. (7) A Member shall be considered to have breached the code of conduct if- (a) he fails, without reasonable cause, to make a declaration required by this section; or11 (b) he knowingly makes a declaration that is false or misleading in a material particular. 7. A Member who is subject to section ten shall be considered to have breached the code of conduct if- (a) he fails, without reasonable cause, to make a declaration required by this section; or (b) he knowingly makes a declaration that is false or misleading in a material particular. The Tribunal was appointed on the 7th day of January, 2014 under Part II of the Parliamentary and Ministerial Code of Conduct Act, Cap 16 of the Laws of Zambia. According to that Act, the Tribunal was to investigate the complaint and render a report to the President of Zambia and the Speaker of the National Assembly within forty five days from the 7th day of January, 2014 being the date of the Appointment.12 3. METHODOLOGY (i) The Tribunal adopted the method provided under the Inquiries Act in accordance with Section 14(10) of the Parliamentary and Ministerial Code of Conduct Act. Section 14(10) states that Sections seven, eleven, thirteen, fourteen, fifteen and seventeen of the Inquiries Act shall apply to a tribunal as if- (a) the tribunal were a commission appointed under the Act; (b) a reference to a commissioner were a reference to a member of the tribunal; and (c) a reference to the President were a reference to the Chief Justice. The aforestated Sections state as follows:- 7. No commissioner shall be liable to any action or suit for anything done by him as such commissioner. 11. (1) Commissioners may appoint an interpreter who shall, before entering upon the duties of his office, take and subscribe 13 before the commissioners, an oath or make an affirmation in the form set out in Part II of the First Schedule. (2) An interpreter shall receive such remuneration as the commissioners may direct. 13. (1) Commissioners, in the discharge of any of their functions, shall not be bound by the rules of evidence or by the rules of procedure of any court or tribunal, but may conduct their proceedings in such manner as they think proper and admit any evidence, written or oral, whether or not such evidence would be admissible in civil or criminal proceedings. (2) If commissioners are equally divided on any question that arises during their proceedings, the chairman of the commission shall have a second or casting vote. 14. (1) Commissioners may- (a) enter upon and inspect any land, building, place or vessel, and inspect any goods and other things, the entry upon or inspection of which appears to them to be requisite for the purposes of the inquiry;14 (b) require, by summons, in the form prescribed in the Second Schedule, the attendance of any person whom they wish to call before them and call for the production of books, plans and documents; (c) examine witnesses on oath or affirmation, administered by them. (2) Reasonable travelling expenses shall be paid to any person summoned in pursuance of the provisions of subsection (1). (3) No person giving evidence shall be bound to incriminate himself and every witness shall, in respect of evidence given by him before the commissioners, be entitled to the same privileges to which he would be entitled if giving evidence before the High Court. 15. (1) If, by reason of the distance at which any person whose evidence is desired, resides from the place where his evidence is required, or if, for any other cause the commissioners deem it advisable, they may issue a commission to any public officer or person therein named, empowering him to take such evidence and report the same to the commissioner.15 (2) A public officer or person to whom a commission is issued under subsection (1) shall have the powers of commissioners under subsection (1) of section fourteen, and the provisions of subsections (2) and (3) of section fourteen shall apply, mutatis mutandis, where such powers are exercised. 17. If any person- (a) who has been summoned to attend as a witness or produce any book, plan or document- (i) fails, without sufficient cause, to attend at the time and place mentioned in the summons served on him; (ii) attends, but leaves the commission without the permission of the commissioners, or a public officer or person empowered under section fifteen, as the case may be; (iii) refuses to be sworn or, having been sworn, refuses, without sufficient cause, to answer or to answer fully and satisfactorily to the best of his knowledge and belief all questions put to him by or with the concurrence of the 16 commissioners, or by a public officer or person empowered under section fifteen; or (iv) refuses or omits, without sufficient cause, to produce any books, plans or documents in his possession or under his control and mentioned or referred to in the summons served on him; (b) refuses or omits, without sufficient cause, to- (i) produce any books, plans or documents to an authorised officer acting under section sixteen; (ii) permit an authorised officer acting under section sixteen to examine, make extracts from or copies of any books, plans or documents; (iii) explain any entry in or marking of any book, plan or document to an authorised officer acting under section sixteen; he shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand and five hundred penalty 17 units or to imprisonment for a period not exceeding six months, or to both. (ii) The Tribunal was not bound by rules of evidence or rules of procedure of any Court or Tribunal nor fettered by technicalities This was in accordance with section 13 of the Inquiries Act, which we have already reproduced above. (iii) The Tribunal was at liberty to admit any evidence, written or oral, whether or not such evidence would be admissible in civil or criminal proceedings. This was pursuant to section 13 of the Inquiries Act, which we have already outlined above.18 4. SITTINGS (i) The Tribunal commenced its sittings on the 15th day of January, 2014 at 14:39 hours to give the guidelines to the Complainants and the Respondent. (ii) The hearing of testimony from witnesses commenced on the 20th day of January, 2014. (iii) The Tribunal heard testimony from a total of six witnesses (a)Lucky Mulusa, one of the Complainants (b)Wallen Simwaka in favour of the Complainants (c) The Honourable Minister of Justice, Mr. W. Kabimba, the Respondent (d)Mr. Musa Juma Mwenye, the Solicitor-General and Mr. Goodwell Lungu, the Executive Director of Transparency International Zambia in favour of the Respondent. (e)The Tribunal called a witness, Leonard Banda; a Patriotic Front candidate in the Petauke Central Constituency Parliamentary elections.19 (f) The Tribunal also received several documents tabled before it.20 5. SUMMARY OF WITNESSES’ TESTIMONY MR. LUCKY MULUSA – CW1 CW1 told the Tribunal that his complaint against Honourable Wynter Kabimba, was that the Honourable Minister of Justice caused the Solicitor-General, Mr. Musa Mwenye, to render a professional legal opinion to him. That Honourable Kabimba received this legal opinion in his capacity as a Government official but went on to transmit it to the Patriotic Front (hereinafter referred to as “the PF”), a private entity. It was CW1‟s evidence that the PF obtained pecuniary advantage by having the said legal opinion because it did not pay for the legal advice. He stated that this legal opinion was paid for by the public as the Solicitor-General is paid by the Government. CW1 went on to tell the Tribunal that the other beneficiary of this professional legal advice is Mr. Leonard Banda, who used the opinion in his case against Honourable Dora Siliya. It was CW1‟s further testimony that Honourable Kabimba interfered with the independence of the Judiciary when he copied a 21 letter to the Acting Chief Justice. He testified that Honourable Kabimba sought to move the Acting Chief Justice in a manner that is not prescribed by the law. CW1 told the Tribunal that Honourable Kabimba breached the Oath of secrecy. That Honourable Kabimba is subject to the Oath he took as a nominated Member of Parliament in which he swore to protect the Constitution. That he is also subject to the Oath he took as Minister of Justice in which he swore not to disclose any information obtained in his official capacity. It was CW1‟s testimony that Honourable Kabimba breached the Oaths Act, in particular, the 7th schedule, which is the Oath of office, and the 4th schedule, which is the Oath of Ministers and Junior Ministers. According to CW1, this was because he passed on information which came to him in his capacity as Minister of Justice.22 CW1 specifically testified that Honourable Kabimba sent the legal opinion he obtained from the Solicitor-General, to Ellis and Company, for the attention of Mr. Bonaventure Mutale, SC. CW1 also stated that on 26th September 2013, Musa Mwenye Advocates wrote a letter, addressed to the Daily Nation Newspaper, stating that the legal opinion in issue was rendered to the Honorable Minister of Justice, Honorable Kabimba, in his capacity as Minister of Justice. That the legal opinion was not different from other opinions that the Solicitor-General is constitutionally obliged to give to the Government and other public officials. He went on to tell the Tribunal that Honourable Kabimba failed to protect the Constitution when he copied the letter he wrote to Ellis and Company, to the Acting Chief Justice, over a matter that was subject to litigation by his own Party. He testified that, Article 7 of the Constitution provides for the separation of powers and independence of the Judiciary. He emphasized that one cannot move the Court by writing a letter but that instead that should be 23 done in accordance with rules of procedure that are applicable in that regard. It was CW1‟s evidence that the Ministerial and Parliamentary Code of Conduct is the basis of his complaint. He stated that the trigger event in bringing the Complaint was the Judgment of the Supreme Court, in the Nevers Mumba contempt proceedings, which showed that Honourable Kabimba had copied the letter to the Acting Chief Justice. CW1 told the Tribunal that Mr. Wynter Kabimba committed a wrong in terms of Part II of the Parliamentary and Ministerial (Code of Conduct) Act. He alleged that Honourable Kabimba is in breach of Part II of the Ministerial (Code of Conduct) Act since Mr. Bonaventure Mutale, SC, to whom he sent the legal opinion, is not an authorized person. CW1 further told the Tribunal that the Minister of Justice knowingly obtained pecuniary advantage when he obtained the legal opinion without paying for it, and passed it on to Mr. 24 Bonaventure Mutale SC. According to him, Mr. Bonaventure Mutale, SC is a Patriotic Front member because he is the lawyer for the Patriotic Front. His testimony was that Honourable Kabimba assisted Mr. Bonaventure Mutale, SC to equally obtain pecuniary advantage just like he did with Mr. Leonard Banda. CW1 stated that the Patriotic Front and Mr. Leonard Banda did not pay for the legal services availed to them. According to CW1, his understanding of pecuniary interest is obtaining something that has a cost to it, without paying the said cost. CW1 also told the Tribunal that the Minister of Justice obtained the legal opinion from the Solicitor-General for the sole purpose of passing it on to the Patriotic Front, which he did in his letter of 1st August, 2014 to Mr. Bonaventure Mutale, SC. CW1 further told the Tribunal that there were other events that occurred before the judgment of the Supreme Court, that necessitated his complaint and these area) Honourable Wynter Kabimba promised to engage the Judiciary;25 b) there was a request for a legal opinion from the Solicitor-General; and c) the legal opinion was passed on to Mr. Bonaventure Mutale, SC and copied to the President and the Acting Chief Justice. It was CW1‟s testimony that the Minister of Justice was wrong when he said he would engage the Judiciary as he belongs to the Executive. He pointed out that the Judiciary is independent and is enshrined in the Constitution as such. CW1 went on to testify that even though the letter that Honourable Kabimba wrote does not expressly say he would engage the Judiciary, the letter compelled every recipient to peruse and act on it. He further testified that the Supreme Court in the Contempt of Court proceedings already referred to showed extreme displeasure about the letter and the fact that Honourable Kabimba had copied that instructive letter to the Acting Chief Justice. CW1 told the Tribunal that he does not agree that the legal opinion rendered by the Solicitor-General was part of an ongoing national 26 debate on the subject matter contained in the opinion, as it was only availed to Honourable Kabimba as the principal recipient. He insisted that the said legal opinion was not a contribution to an ongoing national debate, but a contribution to the schemes of Honourable Kabimba and his Party. CW1 admitted that the legal opinion was not marked as classified. He, however, stated that this did not change the position according to the Oath of secrecy. That the Oath of secrecy did not provide that only classified information should not be disclosed to unauthorized persons. CW1 told the Tribunal that the letter at page 26 of the Complainant‟s bundle of documents, was written by Honorable Kabimba in his capacity as Secretary-General of the Patriotic Front. He stated that there is a boundary between Secretary-General of the Patriotic Front and Minister of Justice. That the current political dispensation was not that of „the Party and its Government‟. That, therefore, the Party is separate from the Government. 27 CW1 summarized his complaint by stating that Honourable Kabimba used his position, as Minister of Justice, to obtain the legal opinion from the Solicitor-General and thereafter passed it on to the Patriotic Front, a private entity, when he changed his jacket from that of Minister of Justice to that of Secretary-General of the Patriotic Front. That the Patriotic Front also passed the legal opinion to Mr. Leonard Banda, also a private individual. WALLEN SIMWAKA – (CW2) CW2 a Reporter with Daily Nation Newspaper told the Tribunal that he works for the Daily Nation Newspaper. That he is on the Editorial Board of the Newspaper and, therefore, he chooses which stories go in the paper and which ones do not. CW2 testified that on 26th December, 2013, the Daily Nation Newspaper received a letter from the Solicitor-General, Mr. Musa Mwenye (see page 34 of the bundle of documents for the letter). That the letter was about defamation in relation to an article entitled “Arrest Kabimba, Mwenye”, that was published in the Daily Nation Newspaper of 20th December, 2013. His evidence was that 28 the said letter showed that the legal opinion in question was rendered to Honourable Kabimba in his capacity as Minister of Justice. CW2 stated that the aforesaid letter was addressed to Mr. Richard Sakala, the proprietor of the Daily Nation Newspaper. He informed the Tribunal that when Mr. Sakala received the letter from Musa Mwenye Advocates, he referred it to him, and that as a member of the Editorial Board, he represents Mr. Sakala and the editorial team. CW2 went on to say that the letter was a demand that the Daily Nation retracts its story on Mr. Musa Mwenye. He informed the Tribunal that the story complained of has not been retracted. It was his evidence that he was not aware of any correspondence indicating that Musa Mwenye Advocates have taken this matter further. That he was equally not aware that Musa Mwenye Advocates have commenced an action for libel, against the Daily Nation, in the High Court. 29 After reading through the Writ of Summons taken out by Musa Mwenye Advocates availed to him, Mr. Simwaka confirmed that Mr. Musa Mwenye is complaining to the Court that the article concerning him and Mr. Kabimba, that appeared in the Daily Nation Newspaper on 20th of December 2013, was false and is defamatory of him. CW2 also confirmed that in the article that Mr. Mwenye complains of, the Daily Nation reported that Honourable Kabimba had given the Patriotic Front an opinion that belonged to the Government. When referred to the letter written by Mr. Kabimba and dated the 1st of August 2013, CW2 told the Tribunal that Mr. Kabimba wrote that letter in his capacity as Secretary-General of the Patriotic Front and not as Minister of Justice. WYNTER MUNACAAMBWA KABIMBA – (RW1) RW1 told the Tribunal that he is an Advocate currently serving as Minister of Justice for the Republic of Zambia and SecretaryGeneral of the Patriotic Front. Honourable Kabimba testified that 30 when the Patriotic Front came into power, in September, 2011, he remained in the position of Secretary-General of the party until the 5th of September, 2012, when he was appointed Minister of Justice. That since the said appointment, he has combined his positions of Minister of Justice and Secretary- General of the Patriotic Front. RW1 went on to tell the Tribunal that as Secretary-General of the Patriotic Front, he has continued to be the custodian of the Party Manifesto and the social and economic programs of the Patriotic Front Government. That there is, therefore, cross-cutting in the day-to-day performance of his duties in the two portfolios. He stated that the duality of his responsibilities has not caused any conflict so far. RW1 further told the Tribunal that, in his capacity as SecretaryGeneral of the Patriotic Front as well as in his portfolio of Minister of Justice, he communicates with different Ministers and Government Departments. That, to effect this practice of coordination, he has distributed the Patriotic Front Manifesto to all Government Departments so that it is easy for him to call upon 31 heads of Government Departments to take into account the provisions of the Manifesto in the performance of their duties. It was his testimony that the coordination of Government Departments also encompasses the offices of the learned AttorneyGeneral, the learned Solicitor-General, the Secretary to the Cabinet, the Deputy Secretary to the Cabinet and other Heads of Departments. It was RW1‟s further evidence that he writes letters from time to time directly to all Government Departments, in his capacity as Secretary-General of the Party, to convey particular policies of the Party and guide them on how those policies should be interpreted. On the issue of the Patriotic Front Manifesto‟s stance on corruption, RW1 told the Tribunal that as a party they have adopted the policy of zero tolerance on corruption. That it was from that background that after the 20th September, 2011 elections, the Patriotic Front took the position that all its parliamentary candidates who were aggrieved in respect of the elections should petition the respective elections and that the Patriotic Front would shoulder the legal fees 32 incurred in the said petitions. That this has led to the nullification of a number of parliamentary seats including that of Mr. Lucky Mulusa (CW1). RW1 went on to testify that the PF has avoided adopting persons whose parliamentary seats have previously been nullified on the basis of corruption. He cited one Darius Mumba as an example. He said that in June, 2012, the election of Darius Mumba, who was elected as MMD candidate for Chama North, was nullified by the Supreme Court on grounds of electoral corruption. That Mr. Mumba defected to the PF and was subsequently adopted to recontest the Chama North Parliamentary seat on the Patriotic Front ticket. That, however, as Secretary General of the Party, he consulted the Party‟s lawyers on the legality of Mr. Mumba recontesting that seat and he was advised that Mr. Mumba would not qualify to re-contest the seat since the Supreme Court nullified his election on the ground of electoral corruption. That accordingly, the adoption of Mr. Mumba was revoked. RW1 told the Tribunal that he wrote to the Electoral Commission of Zambia informing them that the adoption of Mr. Mumba had been revoked. He clarified 33 that at the time he wrote the said letter to the Electoral Commission, he had not yet been appointed Minister of Justice. RW1 further testified that when the Patriotic Front noticed that some political parties had continued to adopt persons whose parliamentary seats had been nullified on grounds of corrupt practices, it undertook to stop this trend. That to this effect, he sought legal advice from the Party‟s lawyers, Messrs. Ellis and Company and also from the Solicitor-General, to provide guidance on what he termed a matter of public interest. That when requesting the Solicitor-General‟s professional opinion, he informed him that he had recollected his memory over the position that the PF had taken on the candidature of Darius Mumba but he needed the Solicitor-General, as the custodian of the law in the Ministry and on behalf of the Government, to confirm the position. RW1 disclosed that he sought the opinion of the Solicitor-General because the Attorney-General was out of the country. RW1 told the Tribunal that the opinion of the Solicitor-General simply confirmed the position the Patriotic Front had taken in 2012 in relation to Mr. Darius Mumba‟s candidature. He went on to tell the Tribunal that 34 he forwarded the Solicitor- General‟s opinion to the Party‟s lawyers, Messrs Ellis and Company. He stated that the letter to Messrs Ellis and Company was not about any particular election petition but was broadly entitled „Election Petitions and Findings of Corruption by the Supreme Court‟. Coming to the four allegations leveled against him in the complaint letter, RW1 dealt with them seriatim. On the first allegation, he told the Tribunal that the Solicitor-General‟s opinion was forwarded to him in his capacity as Minister of Justice. His evidence was that whether this issue is looked at from the perspective of him being a Minister of Justice or a Secretary General of the Patriotic Front, he obtained the Solicitor-General‟s opinion in the performance of his duties to serve the Zambian People. That he did not, therefore, abuse his office in that regard. With regard to the second allegation, RW1‟s testimony was that he did not see anything classified about the Solicitor-General‟s opinion. That he was not aware that Mr. Leonard Banda would benefit from that opinion.35 On the third allegation, RW1 told the Tribunal that although the letter he sent to the Party‟s lawyers was copied to the Honourable Acting Chief Justice, it did not direct her to do anything. That the purpose of copying to the Honourable Acting Chief Justice was to make her office see that the Patriotic Front was raising that matter with their lawyers and that their Judgments had raised public interest and debate. That it did not, therefore, constitute an interference with the Judiciary. He denied having ever done anything as Minister of Justice or Secretary-General of the Patriotic Front that could be construed as an attempt to bring pressure on any member of the Judiciary. With regard to the issue of whether or not he obtained pecuniary advantage by getting the opinion of the Solicitor-General, RW1 told the Tribunal that neither him nor anybody else obtained pecuniary advantage as a result of that opinion. RW1‟s evidence was that, as public officers, the Attorney-General and the Solicitor-General have a duty to render public opinions on matters of public interest free of any cost. He testified that the Attorney-General and the SolicitorGeneral render opinions on complaints by members of the public, 36 including political parties, on delayed judgments and perceived unfair Judgments. That the Attorney-General and the SolicitorGeneral do not charge for rendering legal opinions because they get paid from the Treasury of the Republic of Zambia. RW1 confirmed to the Tribunal that he took oaths of office when he was nominated as Member of Parliament as well as when he was appointed Minister of Justice. That the oaths he took enjoined him not to disclose any information that came to him in his official capacities. That the oaths, however, do not make a distinction between classified and unclassified information. He told the Tribunal that the oath of Minister permitted him to disclose information if that information is required in the discharge of his duties as Minister of Justice or if the disclosure is authorized by the President. RW1 indicated that although the oath of Minister only provides for two exceptions under which he could disclose information that came to him in his official capacity, he does not discharge his duties on account of the oath only. His testimony was that he 37 discharges his duties not only as Minister of Justice but also as Secretary-General of the Patriotic Front. He stressed that the dissemination of information that comes to him in his official capacity of Minister of Justice does not have to be pursuant to the oath. RW1 also testified that the oath he swore requires him to protect the Constitution. That this includes protecting the Judiciary and individual Judges from interference with their functions. He agreed that the Judges do not seek legal opinions from the SolicitorGeneral or the Attorney-General. He said that he indicated in his letter to the Patriotic Front lawyers that the Solicitor-General‟s opinion was for their action because he wanted them to take any action that they would deem fit. That he did not perceive copying a letter to the Acting Chief Justice to be interference in the administration of justice. That although the Solicitor-General‟s legal opinion was on a matter of public nature, he marked the letter to the Patriotic Front lawyers confidential because it was communication between a client and its Advocate. 38 That for the Acting Chief Justice, the letter copied to her was for her information only. That he copied the letter to the Acting Chief Justice because the Judiciary was part of the debate that was going on. His further testimony was that he did not copy the letter to the Electoral Commission, National Restoration Party, United Party for National Development and Movement for Multiparty Development because it was his judicious judgment to decide who to copy the letter to. RW1 admitted that the Patriotic Front Manifesto does not have a provision for the duality of the roles of Patriotic Front SecretaryGeneral and Minister of Justice. That the Gazette Notice Number 406 of 2012 (Statutory Functions and Composition) does not include the Patriotic Front Party functionaries. He, however testified that although the Patriotic Front is a Society by registration, it performs public functions as the Party in Government. He added that the allocation of the dual roles to him has been done by the President in his prerogative. That, therefore, in practice the office of Secretary General of the Patriotic Front is part of Government.39 RW1 went on to tell the Tribunal that he wrote the letter forwarding the Solicitor-General‟s legal opinion from his ministerial office. He clarified that he keeps the Patriotic Front stationary both at the Party Secretariat and at his ministerial office. MUSA JUMA MWENYE – (RW2) RW2 told the Tribunal that he is currently the Solicitor-General of the Republic of Zambia having been appointed on 15th October, 2011. He testified that it was difficult to elaborate his functions without starting with the duties of the Attorney-General. He said that the functions of the Attorney General are twofold. That the first limb is governmental which he said implied that both the Attorney-General and the Solicitor-General are members of the Government. That the second limb is that the functions of the two offices entail that they should act in the public interest. He clarified that the second limb of the functions means that in matters of public interest the Attorney-General can intervene even in legal proceedings. That secondly, on matters of law which are of a public interest nature, the Attorney-General, and by extension, the Solicitor-General, can render their positions to Government officers40 and members of the public, on request. RW2 said that there are two limitations on the responsibility to give advice to Government officers and members of the public. He outlined these limitations as - (1) where there is no conflict of interest that may be raised by that action or (2) where there will not be a significant risk of breach of privilege or confidential information. He exemplified the two limitations by stating that if a member of the public requests for guidance from the Attorney-General or the Solicitor-General on a matter that has the potential of leading to litigation against the Government then in that instance the Attorney-General or the Solicitor-General will decline to give general or particular guidance. RW2 went on to say that in instances where they render legal opinions, they do not charge for such services. RW2 further explained that apart from Article 54 of the Constitution, Cap 1, his functions are also drawn from the Halsburys Laws of England, Volume 44(1). His evidence was that as part of the common law, the Halsbury‟s Laws of England was applicable in ascertaining his functions. He, however, said that the definition of “written law” in Section 3 of the Interpretation and 41 General Provisions Act, Cap 2, does not include the Halsburys Laws of England. Coming to the opinion he rendered to Honourable Kabimba, RW2 acknowledged that he indeed rendered his opinion on nullification of elections on the grounds of electoral corruption, and particularly on the implications of Sections 22 and 104 of the Electoral Act. RW2 explained that the background to his rendering an opinion was that sometime in July, 2013, an issue was raised by Transparency International Zambia over the nomination of candidates whose elections had been nullified on the grounds of electoral corruption. That the issue raised by Transparency International Zambia sparked off a debate about the procedure for preventing persons, whose elections were nullified on the grounds of electoral corruption, from re-contesting their seats. That it was on that particular procedure that he rendered an opinion to Honourable Kabimba. RW2 went on to explain that the legal opinion he rendered to the Honourable Minister was not classified in any way. He elucidated that normally a document itself would have a classification on its face. That if his opinion was classified, it would 42 have been stamped “secret”, “restricted”, “top secret”, or “confidential”. He added that, in fact, the legal opinion has also been published by media houses something that he said would not happen without repercussions if it was classified. RW2 said that if the Patriotic Front or any member of the Patriotic Front had asked for that opinion he would not have given them because there were imminent proceedings, on the subject of the opinion, to which the Patriotic Front would have possibly been a party. He told the Tribunal that he did not recall whether either the Attorney-General or himself released the opinion to any private person. RW2 went on to testify that there was no need to have a law to allow Mr. Kabimba to perform the dual roles of Minister of Justice and Secretary-General of the Patriotic Front. He gave an example that even him as Solicitor-General he could be Chairperson of the Rotary Club without there being a necessity for a law to create his additional position of Rotary Club Chairperson.43 GOODWELL LUNGU – (RW3) RW3‟s evidence was that he works for Transparency International Zambia as the Executive Director. He testified that Transparency International Zambia has thirty six members. That this is because it is a company limited by guarantee, which can only have up to fifty five members. That the thirty six members it has are spread across the Country. He outlined the main objectives of Transparency International Zambia as- (1) to contribute towards the reduction of corruption in Zambia; (2) to raise debate on corruption and governance issues in Zambia; (3) to conduct research on governance and corruption and promotion of transparency and accountability; and (4) to collaborate or network with other like-minded stakeholders. It was RW3‟s further evidence that on 23rd July, 2013, he wrote a letter to the Electoral Commission of Zambia expressing Transparency International Zambia‟s concerns regarding what he 44 termed as the trend where the High Court and the Supreme Court were nullifying parliamentary seats on account of corruption but same candidates who were being cited for corruption were allowed by the Electoral Commission to re-contest the nullified seats. He said that the other purpose of the letter was to help in cleaning up the electoral process especially by making the risk of a candidate indulging in electoral corruption very high by ensuring that all such candidates were blocked, from standing in parliamentary elections, for a period of five years, in accordance with the law. He stated that at the time he wrote the letter to the Electoral Commission, about six parliamentary seats had been nullified. RW3 explained that his organization did not write the letter to the High Court and the Supreme Court because the said Courts do not conduct elections. He disclosed that the aforesaid letter was also shared with the media. He said that they shared the letter with the media because 45 the issue raised in it was a matter of public concern and they wanted members of the public to join in the debate. LEORNARD BANDA - TRIBUNAL WITNESS (TW) TW told the Tribunal that he was aware of the legal opinion rendered to the Minister of Justice by the Solicitor-General. He informed the Tribunal that he became aware of the said opinion sometime in August, 2013, through his lawyers Ellis and Company. He stated that the lawyer that brought this legal opinion to his attention is Mr. Bonaventure Mutale, SC, of Ellis and Company. TW testified that the legal opinion was made available to him for use in a motion before the Supreme Court. TW informed the Tribunal that he gave consent for the legal opinion to form part of his bundle of documents in a matter in which he was contesting the eligibility of the persons, that had lost the petition, to re-contest their seats in the by-elections. TW disclosed that he did not know how the legal opinion found itself in the Contempt of Court proceedings case.46 TW disclosed that the legal opinion in issue was used in Appeal Number 95/2012. That the parties in that cause are Leonard Banda v. Dora Siliya and Dr. Nevers Mumba (as the alleged contemnor). TW confirmed that he was the applicant in that matter. TW informed the Tribunal that he heard that Dora Siliya, Hastings Sililo and Maxwell Mwale had been banned from re-contesting their seats after the Electoral Commission of Zambia issued a statement to that effect. TW went on to testify that he is aware of the press statement by the Judiciary relating to the eligibility of candidates whose seats had been nullified. He confirmed that the said statement came prior to the statement by Electoral Commission of Zambia. TW could not, however, confirm the exact date when the Electoral Commission of Zambia issued its statement. TW further testified that he was the complainant in the contempt of court matter before the Supreme Court. He stated that the background to the Contempt of Court Proceedings case was the nullification of the Petauke Parliamentary seat, on 28th June, 2013, by the Supreme Court. 47 He stated that after the said nullification, the MMD President, Dr. Nevers Mumba, made a statement to the effect that the nullification of the Petauke seat was evidence that the PF was being aided by the Supreme Court to obliterate and suppress the opposition. That this statement was covered by the media. That in view of these remarks, that were disparaging to the Supreme Court, he instructed his lawyers to commence Contempt of Court proceedings against Dr. Nevers Mumba. It was TW‟s evidence that his lawyers filed a motion in the Supreme Court, pursuant to his instruction, and used the letter that the Minister of Justice had written to Ellis and Company, to rebut the defence put up by Dr. Nevers Mumba. It was his further evidence that he did not derive any benefits from the contempt of court proceedings case. He testified that the PF paid the legal fees he incurred in the contempt of Court proceedings.48 TW informed the Tribunal that he was not a party to the High Court proceedings commenced by Dora Siliya, Hastings Sililo and Maxwell Mwale.49 7. FACTS ESTABLISHED BY THE TESTIMONY OF WITNESSES AND DOCUMENTS RECEIVED After considering the testimony of the witnesses and the documents that the participants presented to us, the following facts were established:- 1. Rampant allegations of corruption during the September, 2011 elections led the Patriotic Front Party (PF) to take the position that all its Parliamentary Candidates who were aggrieved in respect of those elections should petition and that PF would shoulder the legal fees incurred in the said Petition. 2. When the PF came into power in September, 2011, Hon. Wynter Kabimba remained in the position of Secretary General of the Party and that on the 5th September, 2012, he was appointed Minister of Justice. 3. In the year 2012, the Patriotic Front Party became of the view that a candidate who had lost his seat on account of corrupt practices was disqualified from contesting any election for a period of five years. 4. Because of that view, the Patriotic Front withdrew a candidate whom it had adopted to re-contest the byelection in the Chama North Constituency.50 5. By letter dated the 23rd July, 2013, a civil society organization known as Transparency International Zambia raised concern with the Electoral Commission of Zambia regarding the civil society‟s observations that candidates whose parliamentary seats had been nullified on account of corrupt practices had been allowed to re- contest the by-elections that followed. 6. Transparency International Zambia also sent that letter to the media for publication. 7. In his quest to contribute to what became public debate, Hon. Wynter Kabimba between 23rd July, 2013 and 1st August, 2013 sought an opinion from the Solicitor-General regarding the legal position of the candidates whose parliamentary seats had been nullified on account of corrupt practices. 8. Between 23rd July, 2013 and 1st August, 2013, the Solicitor-General duly rendered the legal opinion to the Honourable Minister of Justice. 9. On 1st August, 2013, the Honourable Minister of Justice sent to Messrs Ellis and Co the legal opinion rendered by the Solicitor-General under cover a letter on PF letter head as Secretary-General for PF.51 10. Copies of the letter and the opinion were sent to His Excellency the President of Zambia and the Acting Chief Justice of Zambia. 11. On 8th August, 2013, the Judiciary issued a press statement explaining that where in an election petition, the finding of corrupt practices is made or confirmed by the Supreme Court, then the requirement that the High Court should render a report to the Electoral Commission of Zambia is overtaken by events. The press statement also explained that Supreme Court Judgments are binding on the public and all Institutions, including the Electoral Commission of Zambia. 12. On 9th August, 2013, the Acting Registrar of the High Court sent the press statement to the Electoral Commission of Zambia. 13. The Electoral Commission of Zambia issued a statement stating that in view of the press statement by the Judiciary, the Electoral Commission of Zambia would not accept applications for nomination in the forthcoming by-elections from candidates whose Parliamentary seats had been nullified in the Petauke 52 Central, Malambo and Mulobezi Constituencies on account of corrupt practices. 14. The candidates who were barred from re-contesting instituted Court proceedings against the Electoral Commission of Zambia. 15. On 11th October, 2013, a candidate of the Patriotic Front in the Vubwi Constituency who had succeeded on appeal in the election petition regarding that Constituency filed a motion in the Supreme Court seeking an order that the High Court do render a report to the Electoral Commission of Zambia that would result in the losing candidate being barred from contesting any Parliamentary election for five years. 16. On the 17th October, 2013, another candidate of the Patriotic Front in the Zambezi West Constituency who had succeeded on appeal in the election concerning that constituency filed a similar motion in the Supreme Court. 17. On the 31st October, 2013, Messrs Ellis and Co who were representing Leonard Banda before the Supreme Court in a motion in which Leonard Banda had cited the President of the Movement for Multiparty 53 Democracy, Dr. Nevers Mumba, filed the opinion of the Solicitor-General together with the accompanying letter written by the Honourable Minister of Justice in court to support their case vide a supplementary Bundle of Documents. 18. The Supreme Court rendered the Judgment in the contempt proceedings on the 23rd December, 2013. 19. In that Judgment, the Supreme Court expressed disapproval with the fact that the Honourable Minister of Justice had copied his letter and the SolicitorGeneral‟s legal opinion to the Acting Chief Justice when there were intentions by the Patriotic Front candidates to file motions in the Supreme Court seeking to bar the losing candidates from re-contesting the elections. 20. On the strength, mainly, of the reservations expressed by the Supreme Court in the Judgment, the complaints, Mr. Brebner Changala and Mr. Lucky Mulusa applied to the Acting Chief Justice on 24th December, 2013 to establish a Tribunal to investigate the Honourable Minister of Justice. 21. On 26th December, 2013, a daily tabloid newspaper known as the “Daily Nation” published an article calling 54 for the arrest of the Honourable Minister of Justice and the Solicitor-General for having rendered a legal opinion to the Acting Chief Justice. 22. On the same day, the Solicitor-General‟s advocates wrote to the Daily Nation Newspaper demanding a retraction of the article and an apology. That letter of demand has since culminated into a Court action for libel. 23. The complaint before the Tribunal, therefore, emanates from what the Complainants gathered from the Supreme Court Judgment in Dr. Nevers Mumba‟s contempt proceedings and their personal knowledge having been personally following the issues complained of.55 8. TRIBUNAL’S FINDINGS Having established the facts that arose from the testimony of witnesses and the documents presented, we set out to make our findings. In making the findings, we were guided by the following limits of jurisdiction placed upon the Tribunal under the Parliamentary and Ministerial Code of Conduct Act: (i) The Tribunal was appointed pursuant to section 13 of the Act (ii)The Act itself was established pursuant to the provisions of the Constitution of Zambia to act as a Code of Conduct for Ministers and Members of the National Assembly (iii)The Act was established to curb corruption and abuse of office by Ministers and Members of the National Assembly (iv) A Tribunal appointed under Section 13 of the Act deals only with allegations of breach of Part II of the Act (v) The breaches set out in Part II of the Act are limited to 56 (a) the acquisition of pecuniary advantage by Ministers or Members of the National Assembly (b) the declaration by Ministers and Members of the National Assembly of their interest in Government contracts and (c) The declaration, annually, by Ministers of their assets, liabilities and incomes (vi) Any breaches outside those set out in Part II of the Act are outside the Jurisdiction of the Tribunal. With the foregoing guidance, we set out to consider the
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