By Mwaka Ndawa/ The Mast
DIRECTOR of Public Prosecutions Lillian Siyunyi has commenced judicial review proceedings against the State over President Hakainde Hichilema’s refusal to relinquish her oath of silence in order to answer to allegations of unethical misconduct before the Judicial Complaints Commission (JCC).
Siyunyi charged that the President failed to understand the contents of the oath of office made pursuant to Section 11 of the official oaths Act and the provisions of Article 93(1) of the Constitution.
She said she can only disclose information made known to her in the discharge of her duties with the authority of the President and that the decision or instruction of the President shall be put in writing under his signature.
Siyunyi, who has thwarted her disciplinary hearing since inception for fear of breaching her vow of secrecy, wants the Lusaka High Court to declare that the Head of State’s decision to decline her request to do away with her word of honour in relation to matters complained of by members of the public against her before the JCC is unconstitutional and illegal.
She wants the court to order that she is entitled to a waiver of her commitment to her office regarding specific complaints before the JCC in order to defend herself.
Siyunyi is seeking an order staying the decision of the President not to waive her vow and an order suspending her disciplinary hearing for alleged professional misconduct pending determination of the matter.
According to her notice of application for leave to apply for judicial review, Siyunyi claimed that following his inauguration, President Hichilema called on Zambians to complain in numbers gainst her before the JCC.
She said the President’s sentiments were echoed by Minister of Justice Mulambo Haimbe after which members of the public heed the directive and lodged complaints.
“At the times these complaints were lodged with the JCC, the Commission could not sit to hear the complaints as it could not form a quorum. When commissioners required under the Judicial (code of conduct) Act no. 13 of 2013 were appointed, the Commission on April 25, 2022 wrote to the applicant informing her of the complaints lodged with the Commission and requesting that she responds to the said complaints with a period of 14 days,” Siyunyi said.
Siyunyi stated that on April 25, she responded to the JCC informing the disciplinary body that she was constrained to respond as her responses would hinge on information that she received or came across in the course of her duty.
The DPP said she informed the disciplinary body that she had also written to the President to seek clearance as she was constrained by the oath of secrecy and would only respond when it is removed.
Siyunyi explained that she received a letter dated May 3, 2022 from the President’s legal advisor Christopher Mundia indicating that her request is indefensible at law as the constitutional process under Article 182(3) of the Constitution does not require the President to waive the oath of secrecy of an office bearer.
Mundia guided that no provision of the Constitution permits the President to relinquish a civil servant’s vow of secrecy.
She stated that despite the JCC having recognised the need for the President to grant her a waiver it, proceeded to schedule hearing of the complaints on July 18, 2022.
“In its ruling dated July 19, 2022, the Commission, recognising the severity of the punishment on conviction for disclosure of information or matters that came under her consideration as provided for under the State Securities Act, Chapter 111 of the laws of Zambia, which is a term of imprisonment of not less than 15 years but not exceeding 25 years, the Commission adjourned the hearing on July 25 and insisted that the Attorney General needed to respond,” she submitted.
“At the next hearing, the applicant raised a preliminary issue stating that the purported denial for the grant of the waiver was from the Attorney General and not from the President, the appointing authority.”
Siyunyi said the JCC ruled that the response from the Attorney General dated August 4 indicating the denial of the waiver of the oath of silence was authoritive enough and allowed it to proceed with the disciplinary hearing.
She contended that the decision of the President to refuse to grant her a waiver of the oath of secrecy is in excess of Section 5(1) and (2) and Section 6 of the official oaths Act as read together with Article 182 (1) and (3) and Article 93(1) of the Constitution.
Siyunyi argued that the refusal to grant her the waiver she was seeking ought to be in writing and under the hand of the President.
She is further seeking a declaration that the letter from the Attorney General dated August 4, 2022 denying her a waiver of the oath of secrecy is illegal.
Siyunyi wants a declaration that the decision of the JCC to hear the several complaints of alleged professional misconduct is illegal.
She is also seeking an order of certiorari to quash the decisions.
Siyunyi prayed that if leave is granted it should operate as a stay of the decisions.