By Shalala Oliver Sepiso
There is a letter doing rounds on social media, which is purported to have been written by embattled Director of Public Prosecutions (DPP) Lillian Siyuni to the Judicial Complaints Commission (JCC). In that letter, the DPP is alleged to have informed the JCC that she was unable to respond to the various complaints raised against her before JCC because she was constrained by her oath of Office. It is said that she had also written to President Hakainde Hichilema to lift her Oath of Office and to give her authority to clear the allegations that had been levelled against her.
If truly this letter was written by her, it seems to have been written to both divert from her duty to defend herself and to give an impression that she cant defend herself because of her sworn oath. At the very the least, the letter is surprising because there is no need for her oath of secrecy to be withdrawn for her to defend herself. Further, there is no provision in the law for any oath of office that has been taken to be withdrawn or waived.
Over the last week, some of her critics found her request to have her Oath of Secrecy lifted a form of blackmail and a veiled threat to the presidency as well as to the current government. This is because – assuming that was possible – she could then go ahead and leak sensitive information on all cases she has had interactions with, which would embarrass a lot of people and even jearpadise the whole prosecution process in Zambia. Others found it absurd that a senior legal practitioner, like her, should have known better that there is nothing in Chapter 5 of the Laws of Zambia i.e. the Official Oaths Act, the Judiciary Administration Act No. 23 of 2016, Section 20 of the Judicial (Code of Conduct) Act as amended by the Judicial (Code of Conduct) (Amendment) Act No. 13 of 2006, Article 260 of the Constitution of Zambia 2016 and other laws, which provides for the president or anyone lese to lift or waive the oath of office once one takes it or it has been administered.
Others wonder why she claimed that she needed protection considering that she has recourse to appearing before the JCC in camera and also knowing that her testimony before the JCC cannot be used against her for further litigation, punishment or otherwise as long as her verisimilitude is intact.
So it seems that she was simply playing to the gallery and she just wanted to create a perception – and some reasonable doubt in the minds of average Zambians – that she is unable to defend herself but she is blameless.
And we have been down this road before. This game was also played before our very own eyes when former ZAF Commander Sunday Kayumba tried it, and so did former Spy Chief Xavier Chungu. In the case of “Katele Kalumba and five others”, it was also a ploy that was tried. We also saw former ZAF Commander Muma try the same trick. In all cases, courts have repeatedly ruled that the oath of office cannot be lifted or waived and when presidents have been asked to waive them – like the case of former DPP – presidents have refused to be drawn in. Despite knowing that the request won’t be granted as it is not tenable before the law, the intention is not to have their requests granted but the real intent of such an act is to project oneself as a victim of circumstances while pointing an accusatory finger at the President. Or at least others. This is simply a smokescreen!
Imagine what would become of our country and society if the oath of office was only kept when it was convenient to do so. There would be no need to have the oath if it was only for convenience. Otherwise government is a system that functions because of the rules that glues it in place and one of the them is the confidentiality, due diligence and duty of care that comes with the oath of office. Such a request for the oath to be waived is nothing short of indiscipline, chaotic and nothing short of insolence and embarrassing to be coming from a constitutional office holder and indeed a senior and very educated lawyer!
Interestingly, by writing the letter she has written, and as far as JCC is concerned, DPP Siyuni has responded to the JCC by refusing to respond to the allegations. It now means that The JCC can proceed and now establish a prima facie case since she has not pleaded one way or the other and taking it that she is refusing to be held accountable for her actions. A prima facie doesn’t mean she is guilty but any impartial tribunal just peeps into the evidence and determines that the allegations require further investigations. But as things stand, she seems to have a case that she signed an immunity deal whose validity she knows doesn’t even exist. She made the bed, let her lie in it without trying to tie up others.
For her sake, let her write a full response and defend herself otherwise what she has written so far will be taken as a response. In fact, what I hear is that she is lining up a list of serious lawyers including some who we have seen in presidential petitions before.
And when she finally writes a defence, if she will, and if her argument will be that she was under the direction of anyone or had political pressure bearing down on her, then she is incompetent and is in breach of the constitution that provides for the DPP not to be under the direction of anyone. As alleged, if she opened up the door to some individuals to instruct her, she clearly breached the very constitution and ethics she swore to uphold. And for all intents and purposes, she would be demonstrating a clear case incompetence. And constitutional breach. And that can only mean her position is not tenable.
(It’s Kenneth Kaunda Day today and as I take a break from my work while working on a holiday, I thought I should comment on this topical issue.)