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LAZ contradicts itself on eSwatini giftBy Mukosha Funga on 29 May 2018
The Law Association of Zambia says President Edgar Lungu did not breach any law by accepting a piece of land as a gift in eSwatini.
But while recognising that there was no illegality in receiving the gift, LAZ has in the same statement asked President Lungu to relinquish his gift to the nation or to Zambia’s embassy in eSwatini whilst asking the Zambia Law Development Commission to lead a law reform, clearly defining gifts which a Head of State is permitted to receive.
Below is the full statement issued by the Council of the Law Association of Zambia, Tuesday:
The Law Association of Zambia (LAZ) has followed with keen interest the public debate that has raged following revelations of a piece of land granted to President Edgar Chagwa Lungu in the Kingdom of eSwatini, formerly known as Swaziland.
LAZ has also noted the serious insinuations and allegations of corruption against the Head of State that have erupted following the revelations of his receipt of the said land. LAZ has further noted from various media reports that there are certain official documents in the Kingdom of eStwatini, which indicate that the land in issue was one of around 90 plots owned by a company called Inyasti Properties Limited, which land the company had lawfully acquired from another company called Rudolph Investments in the year 2017. It is also public knowledge that Inyasti Properties Limited was awarded two contracts in the year 2015 in Zambia to upgrade and build two main roads, namely, Chinkankata Road and the Ndola-Mufulira Road, worth billions of Kwacha.
LAZ has also established from media reports that the spokesperson of the Government of eStwatini, Mr Percy Simelane was recently quoted by the Times of Swaziland Newspaper as indicating that the purchase of land to build a family house for President Lungu in eStwatini is a private issue. To the best of LAZ’s knowledge, the government of eStwatini has not categorically denied or confirmed, to date, whether the land was indeed a gift from His Royal Highness, King Mswati to President Lungu. LAZ is however cognizant of the official Zambian government’s position on the matter, as communicated by the Hon Minister of Information, Ms Dora Siliya, and the Special Assictant to the President for Press and Public Relations, Mr Amos Chanda, that the land in question was granted to President Lungu as a gift by King Mswati, in his capacity as a citizen of Zambia and as the Republican President of Zambia.
In the light of the intense public interest on the subject of the legality of receiving gifts by a sitting President from another head of state or indeed any other person or otherwise and in accordance with its objectives under Section 4 of the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia, which mandates LAZ to, inter alia, seek the advancement of the rule of law, promote reform of the law in Zambia and to assist the public on matters touching on the law, LAZ has conducted legal research on the matter, with a view to assisting the public on the interpretation of the relevant law in this matter.
It is LAZ’s position that the Anti-Corruption Act No.3 of 2012 and the Parliamentary and Ministerial Code of Conduct Act, Chapter 16 of the Laws of Zambia are the principal statutes that touch on the legality of the receipt of a gift by the President or any public officer, the former being more relevant to the issue at hand. LAZ therefore opines as set out hereunder.
In terms of definitions, the Anti-Corruption Act does not define the word, “gift” but defines the phrase, “casual gift” in section 3 as,
“…any conventional hospitality, on a modest scale or unsolicited gift of modest value, offered to a person in recognition or appreciation of that person’s services, or as a gesture of goodwill towards that person, and includes any inexpensive seasonal gift offered to staff or associates by a public or private body or a private individual on festive or other special occasions, which is not in any way connected with the performance of a person’s official duty so as to constitute an offence under Part III.
Furthermore, section 3 of the said Act defines the term “public officer”, as:
“…any person who is a member of, holds office in, is employed in the service of, or performs a function for or provides a public service for, a public body, whether such membership, office, service or, function or employment is permanent or temporary, appointed or elected, full time or part time or paid or unpaid and “pubic office” shall be construed accordingly.”
Section 3 of the Anti-Corruption Act also defines the term “public body” as:
“…the government, any ministry or department of the government, the National Assembly, the Judicature, a local authority, parastatal, board, council, authority, commission or other body appointed by the government or established by, or under any written law.”
The definition of the terms, public body and public officer, which encompasses appointed and elected officials who perform their duties for the benefit of any of the three arms of government and other related public institutions, seem to cover the Republican President. However, LAZ also notes that Article 266 of the constitution of Zambia, as amended by Act No. 2 of 2016, also proffers a definition of the term, “public officer” and further defines the terms, “state office” and “state officer” as:
“Public officer” means a person holding or acting in a public office but does not include a state officer, councillor, constitutional office holder, a judge and a judicial officer;
“State office” includes the office of the President, Vice-President, Speaker, Deputy Speaker, Member of Parliament, Minister and Provincial Minister;
“State officer” means a person holding or acting in state office”
To the best of LAZ’s knowledge, the superior courts of Zambia are yet to determine the meaning of the term “public officer” as defined by the Anti-Corruption Act in the light of the amendments to the Republican Constitution by Act No. 2 of 2016. Accordingly, in the absence of any judicial pronouncement, the interpretation or definition of who a public officer is, in relation to the Anti-Corruption Act and whether the Republican President is included in the definition is capable of different interpretations and such interpretations are part of the citizens’ rights to freedom of expression in a democratic state. The foregoing notwithstanding, LAZ asserts that given the status and constitutional obligations to the office of the Republican President, it would be safe and advisable to take the position that the President is for all intents and purposes a public officer.
Further to the foregoing, Section 21 (1) (b) under part III of the Anti-Corruption Act criminalises the act of using a public officer’s positon, 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. The said Section 21(1) (b) provides:
“21(1) A public officer commits an offence who:
(b) uses the 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.”
It is LAZ’s considered view that the import of subsection 1(b) of section 21 of the Anti-Corruption Act us to prohibit any form of misuse of one’s public officer obtaining some personal benefit in whatever form including property, profit or other pecuniary advantage.
In relation to the gift of land to President Lungu, LAZ is of the considered view that if indeed the land was a gift to the President from his counterpart, the mere receipt of the gift by the President, in and itself, did not constitute a breach of Section 21 (1) (b) of the Anti-Corruption Act, especially in the absence of evidence that the receipt of the gift was preceded by some “abuse” of position or authority on the President’s part. Therefore, to constitute a breach, and assuming the President is a public officer for purposes of the Anti-Corruption Act, one would have to prove the corrupt element in the act and whether by having accepted the gift, the acceptance was unreasonable or prejudicial to the rights and interests of the government or the nation.
With regard to the applicability of the Parliamentary and Ministerial Code of Conduct Act to the Republican President, LAZ notes that the provisions of section 2 of the Parliamentary and Ministerial Code of Conduct Act, restricts the definition of “member” for the purposes of the said Act, to members of parliament, members holding ministerial office, including all the ministers and the Vice-President, but does not include the person holding the office of the President. Furthermore, pursuant to section 4(d) of the Parliamentary and Ministerial Code of Conduct Act, members of parliament are prohibited from 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.
The view that LAZ has taken in relation to the definition of the word “member” under the provisions of section 2 of the Parliamentary and Ministerial Code of Conduct Act, effectively means the President is not bound by the provisions of the said Act. Accordingly, under the Parliamentary and Ministerial Code of Conduct Act, the President is not restricted from receiving gifts that economically benefit him, such as the land in issue.
The definition of the word, member in Parliamentary and Ministerial Code of Conduct Act notwithstanding, LAZ is of the firm position that declaration of gifts received by any public officer or public body is good governance, public accountability, social justice and the rule of law. The President is accordingly implored to lead the way in declaring/disclosing all gifts of a significant value (or gifts that do not amount to casual gifts) to the nation or parliament whenever he receives them, given the very high public office office he occupies.
Further, research on the topic of the gifts to public officers has revealed that a number of jurisdictions including several states in the United States of America (USA) have enacted specific legislation providing specific guidelines on how gifts to public officers must be dealt with. The giving and receiving of gifts in a social context seems approved as it builds and maintains relationships which are essential ingredients in political sectors especially. However, these jurisdictions do not recognise the ethical issues and public perceptions that arise from receiving of gifts especially for public offices, whether good judgement was exercised in receiving the gift, whether there was any influence exerted or indeed whether any pecuniary advantage or otherwise was obtained. The gifts can take the form of tangible or intangible goods, real or personal property and goods and services all with a value attached. The global trend has been put to annual limits on the value of gifts a public officer can receive, for example, from a single source. Gifts of certain amounts need to be reported with a well-defined gift policy or law. The main piece of legislation on the issue in Zambia, the Anti-Corruption Act in its preamble provides the purpose thereof, namely, inter alia, the prevention, detection and investigation of corrupt practices and the rule of law, integrity and accountability and management of public affairs and property. It is interesting to note that Section 87(1) of the Anti-Corruption Act makes provision for a register of gifts, being administered by a controlling officer. The Anti-Corruption Commission is empowered by Section 87 (2) of the said Act to make rules relating to the management of the register of gifts by statutory instrument. LAZ is not aware if such a register exists but is certain that rules around the subject need to be made and promulgated.
It is clear that there was no public disclosure by His Excellency pf the gifts prior to its discovery so much as to warrant questions around the purpose for its grant in the first place. Consequently, as the gift has been received, it would be befitting of the President as Head of State to relinquish the gift though received in his personal capacity to the nation or the Zambian Embassy in eStwatini.
It is therefore LAZ’s considered view that the need for a legislation or strengthening of existing legislation on the issue of gifts to the office of the President and indeed all public officers has become pertinent in our country. Policy decisions too need to be firmed up. In this regard, we call upon the Zambia Law Development Commission charged with the mandate of law reform to lead the law reform in this area in conjunction with all other stakeholders. LAZ pledges to lend its hand to such law reform.
About Mukosha Funga
Mukosha Funga is a Zambian journalist interested in good governance and anti corruption reporting.
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