By GRACE CHAILE LESOETSA
DIRECTOR of Public Prosecutions (DPP) Lillian Siyunyi has applied for judicial review in the High Court with an interim demand for an order to stay the decision by President Hakainde Hichilema refusing to grant her a waiver of the Oath of Office so she defends herself before the Judicial Complaints Commission (JCC).
This is pending determination of her application for leave to apply for judicial review.
Ms Siyunyi also seeks an order to stay the hearing of complaints lodged by the public with the JCC pending determination of her application.
She wants an order quashing the decision of the President.
According to a notice of application for leave to apply for judicial review filed by her lawyers AMC Legal Practitioners in the Lusaka High Court, Ms Siyunyi contends that the decision of Mr Hichilema to refuse to grant her a waiver of the Oath of Office in respect of the matters complained of by the public lodged with JCC is illegal.
She adds that this is ultra vires Section 5(1) and (2) and Section 6 of the Official Oaths Act chapter 5 of the laws of Zambia as read together with article 182 (1) and (3) and article 93(1) of the Constitution (amendment) Act no. 2 of 2016.
“It is contended that the President failed to understand the contents of the oath of office made pursuant to section 11 of the Official Oaths Act and the provisions of article 93(1) of the Constitution. That the applicant can only directly or indirectly receive or transmit any information or matter made known to her by reason of her office except as may be required in the discharge of her duties as such or with the authority of the President and that the decision or instruction of the President shall be in writing under the President’s signature,” she states.
The DPP contends that the waiver she is seeking ought to be in writing and under the hand of the President and not the Attorney General.
Among the reliefs sought is a declaration that the decision of the President refusing to grant her a waiver of the Oath of Office in respect of the matters complained of is unconstitutional and therefore illegal.
She seeks a declaration that the decision of the JCC dated August 22, 2022 that decides that Article 93(1) of the Constitution (amendment) Act no.2 of the 2016 falls under Part VII of the constitution and therefore that the President’s decision denial to grant her a waiver of the Oath of Office need not be in writing and under his signature and in additional that the decision that the letter from the Attorney General Mulilo Kabesha dated August 4, 2022 denying her the same was a proper decision, is unconstitutional and thus illegal.
Ms Siyunyi also wants the court to declare illegal the decision of the JCC dated August 22, 2022 that decided that the hearing of the complaints against her proceed is unconstitutional and therefore illegal.
She seeks an order that she is entitled to a waiver of the Oath of Office in respect of the specific complaints lodged by the public with the JCC to defend herself.
If granted leave, Ms Siyunyi wants it to operate as a stay of the decisions or further processes to which the application relates until the determination of the same or until the court orders otherwise pursuant to order 53 rule 3 (10) (a) of the rules of the Supreme Court of England, 1965,1999 edition Vol.1.
She has also requested for an oral application pursuant to rule 3(3) of order 53 of the rules of the Supreme Court of England, 1965, 1999 edition volume 1.
Ms Siyunyi said facts are that after his Presidential inauguration, Mr Hichilema called for Zambians to complain in numbers against her and lodge their complaints with JCC.
She states that the sentiments by the President were also echoed by the Justice Minister Mulambo Haimbe.
She said the first complaint to be lodged was on November 20, 2021, a complaint by directors of Ultimate Insurance Firm Tobias Milambo, Nachi Musonda and Richard Lubemba who alleged that she had abused her authority in the case of The people vs the trial, 25PP/172/2019.
On December 22, 2021, the MMD filed a complaint involving motor vehicles that were impounded in 2011 by the PF government administration and released to the claimants pursuant to the judgement of the High Court dated May 23, 2016, in the case of Robinson Mukuka Blonde vs ACC 2013/HP/0654.
Musician and activist Fumba Chama, alias Pilato, also lodged a grievance alleging incompetence and gross misconduct that she interferes with the Drug Enforcement Commission when they laid fresh charges in the case of The People vs Milingo Lungu (former Konkola Copper Mines provisional liquidator).
Other complaints were lodged by DEC and other members of the public.
Ms Siyunyi contends that at the times the complaints were lodged with JCC, the commission could not sit to hear the complaints as it could not form a quorum.
She said that when commissioners required under the Judicial (code of conduct) Act no. 13 of 2013 were appointed, the Commission did on April 25 , 2022 in writing inform her of the complaints lodged with the JCC requesting that she responds to the said complaints within 14 days.
“On April 25, the applicant responded to JCC informing them that she was constrained to respond to the complaints as her responses would hinge on information or matters that she received or came across in the course of her duties as DPP.”
“The applicant further informed the commission that she had also written to the President to seek clearance as she was constrained by the Oath of Office that she swore and that she shall only be able to respond once she received the clearance,” she said.
She states that she also wrote advising the commission that there was an active matter before ConCourt under cause 2022/CCZ/007 invoking the jurisdiction of that court on whether the DPP is a judicial officer amenable to JCC.
She states as she waited on the response from JCC, she received a letter dated May 3, 2022 from Mr Christopher Mundia Junior, the special assistant to the President – Legal stating that:
“Kindly be advised that your request is untenable at law as the constitutional process under article 182(3) of the Constitution of the Republic of Zambia does not require the President to waive the Oath of Office of an office bearer. Precedent exists to this effect. Further, no provision under our laws permit the President to waive the Oath of Secrecy of a public servant bound by that oath as you suggest”.
The DPP states that through her lawyers she wrote to the Attorney General disputing the response from Mr Mundia not being within his mandate and explaining that the waiver she sought was pursuant to the provisions of the Official Oaths Act, chapter 5 of the laws of Zambia.
She said that the Attorney General responded to the letter saying he had not had sight of the letters by her to the President and the response thereto by Mr Mundia.
Ms Siyunyi also contends that the commission proceeded to schedule the hearing of the complaints on July 18, 2022 despite the President not granting her the waiver.
“In its ruling dated July 19, 2022, the JCC recognising the severity of the punishment on conviction for disclosure of information or matter that came under her consideration as provided for under the State securities Act , chapter 111 of the laws of Zambia, which is a term of imprisonment of not less than 15 years but not exceeding 25 years . The commission ruled: “ …it seems to us that the gist of the matter is that if she is not granted a waiver she would incriminate herself and be amenable to sanctions as provided for in section 4 Chapter 111 of the laws of Zambia,”
The said sections states: “Shall be guilty of an offence and liable on conviction for imprisonment for a term of not less than 15 years but not exceeding 25 years,”
She states that the JCC decided to adjourn the hearing to July 25, 2022 and insisted that the Attorney General respond to the letter.
Ms Siyunyi states that at the next hearing, she raised a preliminary issue stating that the purported denial for the grant of the waiver was from the Attorney General and not from the President, the appointing authority.
She said that the JCC ruled that the response from Mr Kabesha dated August 4, 2022 indicating the denial of the waiver of the Oath of Office was authoritative enough and allowed the Commission to proceed with the hearing.
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