The role of LAZ in protecting interests of its members

Wed, 08 Mar 2017 10:16:23 +0000

6th March 2017

Frightone Sichone

Plot No. 7 Mwabombeni Road

Northrise

Mobile: +260 965000700

Email:sichonefls2014@gmail.com

P.O Box 71566 NDOLA

The President

The Law Association of Zambia

Plot No. 1 Lagos Road

Rhodes Park

LUSAKA

I refer to the above subject matter and the telephone conversation I had with you on Friday 3rd March 2017, in which I complained to you over the path that LAZ has taken in selectively protecting some of its members who are facing the law before the courts in their individual capacity.

I am sure you have known me as your colleague and former classmate at the Zambia Institute of Advanced Legal Education (ZIALE) and I have no personal issues with you as Ms. Kasonde. I further have no issues with the individual members of your LAZ Executive. However, I have a problem with you and your executive in your capacity as leaders of LAZ. I am aggrieved with the partial manner in which you are managing the affairs of the Association.

As you are aware, I have continuously been a bonafide member of LAZ for almost 16 years now, having been admitted to the Bar in 2001. I was also elected and served as member of the Council of LAZ in the year 2006.

Having been admitted to the bar in 2001, I joined the Civil Service as Registrar of Lands and Deeds in the Ministry of Lands. I was appointed by the President of the Republic of Zambia as Commissioner of Lands in 2005. Both positions required the holder to be an advocate of the High Court for Zambia and member of LAZ, which I was.

The duties of Registrar of Lands and Deeds included; the registration of Rights and Interests in land through various Legal documents and Instruments such as Certificates of Title, Debentures, Mortgages, Caveats, Assignments and various Deeds.

My duties as Commissioner of Lands were purely delegated functions of the President of the Republic of Zambia in whom all land in Zambia is vested. This delegated function is by virtue of the law as provided under Section 4 and 5 of the Statutory functions Act, Chapter 4 of the Laws of Zambia. Therefore my duties were to allocate land to all Zambians and bodies and entities who qualify by meeting the criteria set out under Section 3 of the Lands, Act, Chapter 184 of the Laws of Zambia.

In 2007, I was accused of abusing my office as Commissioner of Lands because I had allocated land to certain individuals and Companies in the Massmedia area. The then President of the Republic of Zambia Mr. Levy Patrick Mwanawasa, SC, (MHSRIP), came to my defence and stated that I was within the course of my duty and law by allocating land to any Zambian provided that the Zambian individual or Company was eligible. The President declined to take any action against me but instead, he took action against the Minister of Lands at the time whom it was purported had reported me to the investigative wings of Government and to a named Newspaper.

The President then received merciless attacks from the media and was accused of protecting me and shielding me from prosecution. Unfortunately, he succumbed to pressure and suspended me from the Office of Commissioner of Lands in order to let justice prevail. I was arrested and charged in 2007 and went to court until I was acquitted in 2009.

Madam President, you may wish to know that in 2008, while my case was before the subordinate court, I decided to seek protection from LAZ in my matter. I wrote to LAZ and sought protection as its member not because I wanted LAZ to shield me from prosecution or interfere with my case. I sought LAZ’s protection as a matter of principle because I thought I was appearing before court for having diligently and legally discharged my functions as Commissioner of Lands and that the alleged actions were done in my course of duty. I felt that LAZ needed to come to the aid of its member because if the situation was allowed to continue, it would follow that all Lawyers who are members of LAZ and employed in the Civil Service, including advocates under the Attorney General’s Chambers will not be protected against prosecution for mistakes, omissions or errors made in good faith during their courses of duty.

I further argued that under Section 24 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, Officers of the Ministry had indemnity against liability for actions done in good faith. For avoidance of doubt, the section in point provides that;

“The Registrar shall not, nor shall an Assistant of Registrar nor any person acting under the authority of the Registrar or an Assistant Registrar, or under any order or regulation made in pursuance of this Act, be liable for any action or proceeding for or in respect of any act or matter done or omitted to be done in good faith in the exercise or supposed exercise of the powers of this Act or any order or regulation made thereunder.”

I further submitted before LAZ that if my case was allowed to proceed in court, without clarity from LAZ, it would set a bad precedent for Lawyers who might be found to be in conflict with the law for actions done or omitted to be done in good faith during the course of discharging their duty as Advocates, whether be in private practice or public.

I wish to bring it to your attention that the LAZ Executive Committee at the time was presided over by Mr. Elijah C. Banda, SC, who was LAZ President. Mr Musa Mwenya, S.C, was the honourary Secretary. The LAZ Executive then was gracious enough and gave me audience. I was invited to appear before the LAZ Executive Committee to present my case, which I did.

Later in the same month, I was invited by LAZ to get a response. During our meeting, Mr Elijah Banda S.C as President of LAZ at the time read out the position of the Association over my application while Mr. Musa Mwenya, S.C was dutifully taking notes as Honourary Secretary of LAZ. To be precise, LAZ made the following decisions with regard to my application:

1.That LAZ understood and appreciated my application which appeared merited. However, it was not the objective of LAZ to intervene in any of its members cases which were before court as doing so would amount to interfering  with the judicial process;

2.That LAZ had a lot of its members appearing in various courts of law and any intervention in any one case would put the Association into question as to its objectivity and what interest LAZ had in my matter and what criteria was used to pick up only my case;

3.That LAZ had no mandate to provide assistance to members for purposes of legal representation for matters which were purely personal. Therefore I was at liberty to engage any Lawyer of my choice to represent me at an agreed fee or seek the services of the Legal Aid; and

4.That LAZ was a believer in the Separation of Powers, the Rule of Law and the Independence of the Judiciary. LAZ stated further that it was a believer in the principle of equality before the law and if LAZ started defending its members before the courts of law, the Association would be deemed, in the eyes of the public, to be shielding its members from facing the law. Therefore, LAZ advised me to let the due process of law take its course and if found innocent, I would be acquitted.

As a bonafide member of LAZ, I respected the position of LAZ.  I proceeded to engage Messrs Eric Silwamba and Co. to defend me, which they professionally did. I went through the due process of the Law and I was acquitted by the Magistrate court on 1st May 2009. The State did not appeal the decision of the Court and the Anti-Corruption Commission issued me with a Certificate of Acquittal and the matter closed.

Madam President, I am now aware that there is a matter before the Court involving one of the members of LAZ Mr. Nchima Nchito, S.C (whom I hold in very high esteem and I have no personal issues with him). I have no interest in the matter currently in court and I will not delve into it. In short, it is not my intension to discuss the case before Court as that would be subjudice.

However, I am personally interested in knowing why LAZ has taken a suspiciously keen interest in this matter. I need an explanation from LAZ on the following;

1. The difference between my case where protection was declined, and the case involving Mr. Nchima Nchito S.C now in court and several others before court involving LAZ members;
2. The criteria that LAZ is now applying in selecting the Advocates to defend or protect some of its members;

iii. Whether LAZ has now lost faith and trust in the judiciary, and whether members of LAZ now need protection than it was at the time I needed protection from LAZ;

1. If there have been any amendments to the Law Association of Zambia and the Legal Practitioners Acts, which are not known to me, which now places LAZ in a different position in relation to its role in protecting its members than it was at my time;
2. Why LAZ has now taken the role of the Legal Aid Board in aiding its members who are capable of engaging Lawyers on their own as I did, and why this has started now.

As a bonafide member of LAZ, I am aggrieved and I have in my mind, the following questions, which you are not obliged to answer;

1. a) The Honourary Secretary of LAZ, Sashi Nchito, is a biological sister of Mr. Nchima Nchito SC. Could it be the reason why LAZ has now decided to offer protection to its member at this time while the same was not available to me when I needed it because I did not have a relative in the LAZ Executive at the time?

b)The Vice President of LAZ, Eddie Mwitwa, is a Partner with Musa Mwenya, S.C, in their legal practice. This is the law firm which has been retained by LAZ to defend Mr. Nchito S.C. Does someone need to have business or family relationships with members of LAZ Executive for such member to receive protection from the Association?

As I have stated before, I was charged for actions performed in my course of duty. I was operating under the law and instructions from the President on whose behalf I was dutifully carrying out my duties as his delegatee. I truly believed that the Presidency was my client and I was an Advocate who was executing instructions and duties on his behalf. I also believe that Mr. Nchito’s case also relates to his performance of duty as Advocate on behalf of his client.

As I await to receive responses to the issues I have raised herein, my unsolicited advice to your current LAZ Executive is that it must learn to be impartial and endeavour to protect the interests of all members of LAZ whether they practice in Government, Quasi-Government Institutions, Attorney General’s chambers and Private Practice in the interest of upholding and protecting the dignity and integrity of LAZ.

In the complaint I have raised, please consult Mr. Edward Sakala who was the Administrative Officer of LAZ but now Chief Executive Officer of LAZ and Mr. Elijah C Banda, S. C who was President of the Association and presided over my matter for guidance, in case LAZ has misplaced the record.

Kindly avail me with a response within the course of this week so that I can seek legal redress if not satisfied with your response.

I have copied this letter to the Attorney General as Leader of the Zambian Bar for his information.

Frightone Sichone

Member of the Law
Association of Zambia

CcThe Attorney General

Attorney General’s
Chambers

Ministry of Justice

LUSAKA