Harrington takes Dora to Supreme Court
WILLIAM Harrington has appealed to the Supreme Court against the High
Court's decision to clear former communications minister Dora Siliya of
breaching the Constitution as found by the judge Dennis Chirwa-chaired
This is in a matter where High Court judge Phillip Musonda said
the tribunal acted excessively in its findings that Siliya breached the
Constitution when she ignored the Attorney General's advice over RP Capital
In a memorandum of appeal filed in the Supreme Court,
Harrington, the first petitioner in the tribunal, stated that the learned High
Court judge erred in law and fact when he used judicial review proceedings as an
appeal process by delving into the merits of the tribunal's findings by
purporting to interpret Article 54 (3) of the Constitution and holding that the
Attorney General's advice is not mandatory and therefore non-compliance is
Harrington averred that the High Court misdirected
itself in law and in fact when it held that intervenors, once joined to judicial
review proceedings, are not at liberty to institute judicial review proceedings
without leave of the court.
"The learned judge in the court erred in law
when he heard the proceedings in the court below [high court] notwithstanding he
enjoys an intimate and excellent personal relationship with the members of the
tribunal, whose decisions were in issue," Harrington stated.
that judge Musonda should have recused himself from handling the
Harrington stated that the learned trial judge erred in both law
and fact by failing to recognise and appreciate that incorrect understanding by
the tribunal of the provisions of section 4(a) and (b) of the ministerial and
parliamentary code of conduct Act as read together with Article 52 of the
Constitution of Zambia amounted to an error on the face of the
"The learned trial judge erred in both law and fact when he held
that the tribunal exceeded its jurisdiction when it decided that the respondent
had breached the Constitution and the laws made thereunder contrary to the
applicable law and the evidence on record," he stated.
that the learned trial judge erred in fact and in law for failure to quash the
tribunal's decision not to order that the respondent had breached the
ministerial and parliamentary code of conduct Act on account of unreasonableness
contrary to the evidence on record.
He added that the learned trial judge
erred in law by determining the matter without considering the record of
proceedings of the tribunal and all the documents which were produced before the
"The proceedings of the tribunal were not availed or produced
to the court notwithstanding the respondent's averment in paragraph four of her
affidavit dated 15th May 2009 in support of the ex-parte summons for leave to
apply for judicial review," stated Harrington.
Recently, Judge Musonda
said it was uncomfortable to preside and respectfully disagree with members of
the tribunal who are among the most gentle, friendliest, warm-hearted
individuals in the institution.
Delivering judgment in the matter in
which Siliya sought judicial review over the findings of the tribunal that she
breached the Constitution by ignoring advice from the Attorney General's
chambers when she engaged RP Capital Partners Cayman Islands to valuate Zamtel
assets, Judge Musonda also awarded costs to Siliya.
Judge Musonda, in his
29-page judgment, agreed with Siliya's lawyer Eric Silwamba that the tribunal
acted in excess of jurisdiction and illegally when it purported to invoke
section 14(8) and pronounce itself on a constitutional matter.