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 2009-08-31 07:05 am Back to NEWS
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 tribunal.

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 Partners.

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 inconsequential.

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.

He stated that judge Musonda should have recused himself from handling the matter.

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 record.

"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.

Harrington averred 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 tribunal.

"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.

 
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