Dr Peter Machungwa and Anor v The Attorney General and Ors (2001/HP/0705) [2004] ZMHC 2 (30 August 2004)

IN THE HIGH COURT OF ZAMBIA 2001/HP/0705 AT THE PRINCIPAL REGISTRY AT LUSAKA (CIVIL JURISDICTION) IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW AGAINST THE PARLIAMENTARY AND MINISTERIAL CODE OF CONDUCT TRIBUNAL NO. 1 OF 2001 DECISION THE OF IN THE MATTER OF: THE PARLIAMENTARY AND MINISTERIAL CODE OF CONDUCT ACT CAP 16 OF THE LAWS OF ZAMBIA BETWEEN: DR. PETER MACHUNGWA GOLDEN MANDANDI 1st Applicant 2nd Applicant AND THE ATTORNEY GENERAL 1 st Respondent DEAN NAMULYA MUNG'OMBA 2 nd Respondent BWALYA KANYATA NG'ANDU 3rd Respondent ANTI-CORRUPTION COMMISSION 4th Respondent BEFORE THE HONOURABLE MR. JUSTICE PETER CHITENGI IN OPEN COURT AT LUSAKA THIS 30TH DAY OF AUGUST, 2004 For the Applicants: Mr . J. P. Sangwa & Mr. R. M. Simeza of Messrs Simeza, Sangwa & Associates For 1st and 4 th Respondents:Mr. J. Jalasi Principal State Counsel For the 2 11d and 3rd Respondents: Mr. Nch ima Nch ito and Mr. Matibini of Messrs MNB r ( I J 2 JUDGMENT Authorities referred to: - 1. Council of Civil Service Unions Vs Minister for the Civil Service 1985 AC 374; 2. R V National Insurance Commissioner Ex Parte Viscusi 1974 2ALLER 724; 3. Sagnata Invest~ents Limited V Norwich Corpn (1971) 2 QB 614 1971 2 ALLER 1441; 4. Dereck Chitala Vs Attorney General (1995 - 1997) ZR 91; 5. R V Gough 1993 AC 664; 6. Zambia Democratic Congress Vs Attorney General SCZ Judgment 37 of 1999; 7. Nyampale Safaris (Z) Limited and Four Others Vs Zambia Wildlife Authority and Six Others SCZ Judgment No. 6 of 2004. These Judicial Review Proceedings stem from the findings of the Parliamentary and Ministerial Code of Conduct Tribunal No. l of 2001 handed down on 27th July, 2001 recommending to the President of the Republic of Zambia that: - (i) Hon. Golden Mandandi and Hon. Dr. Peter Machungwa vacate their seats in the National Assembly and (ii) That criminal proceedings be instituted against Hon. Peter Machungwa under the Corrupt Practices Act. These recommendations followed a finding by the Tribunal that the two Applicants had breached Section 4(d) of Parliamentary and Ministerial J 3 Code of Conduct Act Chapter 16 of the Laws of Zambia (hereinafter ref erred to as the Act). I granted the Applicants leave to apply for Judicial Review on 3rd August 2001. On the same day, the Applicants filed Originating Notice of Motion for Judicial Review. This judgment appears to have come too late but the reason is that this case went on appeal to the Supreme Court on an interlocutory matter. The Relief sought was tabulated as follows: - l 1. An Order of certiorari to remove into the High Court for Zambia and to quash the said recommendations or decisions. 2. Prohibition to prevent the President of the Republic of Zambia from considering or a cting on the recommendations of the Tribunal. 3. Prohibition to prevent the Hon. Speaker of the National Assembly from declaring the Applicants' seats vacant. 4. A declaration that the Tribunal's findings that the Applicants breached Section 4(d) of the Parliamentary and Ministerial Code of Conduct Act when the same Tribunal made a finding that there was no evidence to show that the Applicants or any other person derived some pecuniary benefit from the money was irrational and contrary to the requirements of Section 4(d) of the said Code of Conduct Act. Grounds on which relief is sought are: - 1. Both Applicants are Members of Parliament and Cabinet Ministers in the Government of the Republic of Zambia. 2. On 12 June 2001, the Applicants were notified by the Honourable Chief J ustice that allegations had been made against them by Mr. Dean N. Mung'omba, Dr. Bwalya K. Ng'andu and J 4 the Anti Corruption Commission under the Parliamentary and Ministerial Code of Conduct Act and that pursuant to Section 13(3) of the said Act, the Chief Justice had appointed a Tribunal to investigate the matter. 3. The nature of the complaints were that the two applicants together with Hon. Dr. Katele Kalumba MP had been involved in the diversion or misuse of Public funds amounting to -K2 Billion obtained from the National Assembly and that their conduct amounted to a breach of Section 4(d) of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16 of the Laws of Zambia. 4 . It was further alleged that the three Cabinet Ministers were involved in the diversion of K2 Billion belonging to the National Assembly which was used to finance the Movement for Multi Party Democracy convention in Kabwe. 5. It was also alleged that the three Cabinet Ministers, whilst acting together jointly, dishonestly and unlawfully acquired significant pecuniary advantage by procuring K2 billion from the National Assembly without the knowledge or approval of the controlling officers in their respective Ministries. 6. During the hearing the Applicants raised an objection to the admission and use of statements and findings or conclusions made by the Anti Corruption Commission during their investigation of a criminal offence of theft of K2 billion from the National Assembly. The Tribunal rejected this application saying it would not attach much weight to those statements and findings by the Anti Corruption Commission, yet when it made its J 5 findings and recommendations it 1s clear that the recommendations are based on the conclusions drawn by the Anti Corruption Com mission in its r eport to the Tribunal. The An ti Corruption Commission were complainants in the matter and thus not impartial. 7. The Tribuna l heard evidence from 27 witnesses and on 1st August 200 1 the Applicants were notified of the Tribunals findings and recommendations to the President of the Republic of Zambia. 8. These recommendations were that the two Minis ters vacate their seats in the National Assembly and that criminal proceedings be instituted against the first Applicant Hon. Dr. Peter Machungwa. The Grounds for Review 1. Illegality a. It is contended that the findings by the Tribunal that the Applicants breached Section 4(d) of the Parliamentary and Ministerial Code of Conduct Act when the Tribunal itself found or established t hat there was no evidence to show that either the applicants or any other person derived pecuniary benefit from the money was contrary to the requirements of the Law. For a member to be considered to have breached Section 4 (d) of the Parliamentary and Ministerial Code of Conduct Act there 1s a mandatory requirement to establish or prove that such a member acquired pecuniary advantage or tha t he assisted someone else to acquire pecuniary advantage. The Tribunal made a finding that there was no such evid ence on record but this notwithstanding, they ignored the Law and still found that Section 4(d) was breached by the Applicants. J 6 b. The Court should be aware that Section 4(d) of the Parliamenta ry & Ministerial Code of Conduct Act sets out the requirements which need to be established by the Tribunal before a member can be found to have breached the Code of Conduct Act viz: - (i) that the member acquired pecuniary advantage or assisted another person to acquire pecuniary advantage and (ii) that a member converted Government property to personal use or unauthorized use. It is contended that there was no evidence to prove the above facts and this has been admitted in the Tribunal's own report. 2. Irrational It is further contended that the findings by the Tribunal that the conduct of the Applicants amounted to a breach of Section 4(d) of the Parliamentary & Ministerial Code of Conduct Act after m aking a finding that on the evidence available, it was unable to find that the Applicants or any other person derived pecuniary benefit from the money was contradictory and irra tional. 3. It is also contended that the refusal by the Tribunal to expunge from its record statements and findings by the Anti Corruption Commission was unfair and in breach of the Rules of Natural Justice. It is clear from the findings by the Tribunal and its recommendations of criminal prosecution under the Corrupt Practices Act that the Tribunal's findings and recommendations were influenced by the findings or conclusions made by the Anti- J 7 Corruption who were one of the complaints before the Tribunal and thus biased. Many witnesses gave evidence before the Tribunal. But it is not necessarily for me to recount the evidence in great detail because my duty is not to sit as a n appellate court but determine, inter alia, whether or not the Tribunal was guilty of procedural irregularities, illegality, irrationality or breached the rules of natural justice. In the event, the brief facts of the case I find necessary to recite are that the two Applicants, who were Government Ministers a nd members of the Movement for Multi Party Democracy, on 25th and 26th April, 2001 got K2 Billion from the National Assembly, which according to some pieces of evidence was n eeded for urgent "Government Business" but according to other eviden ce for the MMD Convention which was taking place at Kabwe about the same time when the Applicants took this money. This transaction came to the knowledge of the authorities and the Hon. Speaker of the National Assembly and queries were raised. On 7th May, 2001 an official of the National Assembly on instructions from the Clerk of the National Assembly went to second Applicant Mr. Mandandi and got K2 Billion equivalent to the K2 billion earlier taken. The Tribunal found that the Applicants diverted the money to some unauthorized u se but that it was not taken for use at the MMD Convention in Kabwe as alleged in the complaint. The Tribunal a:lso found that from the period the money was taken to the period it was refu nded whoever had custody or use of it derived some pecuniary benefit from it. But the Tribunal found that on the evidence it could n ot say whether it was the Applicants or some other person who derived a pecuniary benefit from the K2 billion. J 8 Mr. Sangwa and Mr. Simeza argued the application on behalf of the Applicants. The sum and substance of Mr. Sangwa's submissions is that the Applicants having been alleged to breach the provisions of Section 4(d) of the Act the ingredients in that Section have to be met before the Tribunal can make a finding. It was Mr. Sangwa's submission that in this case the ingredients of Section 4(d) were not met and, therefore, the finding of the Tribunal was illegal. On what amounts to illegality Mr. Sangwa cited de Smith 5 th Edition at Page 295 where it stated that a decision is illegal. (a) If it contravenes or exceeds the power which authorizes the making of the decision. (b) It pursues an objective other than that for which the power to make the decision was conferred. Mr. Sangwa then submitted that to contravene Section 4(d) of the Act one must knowingly acquire pecuniary benefit and it must involve Government property. According to Mr. Sangwa, these ingredients were not satisfied. He pointed ~ut that while the Tribunal found the allegation that the money was used to finance the MMD Convention not proved, it nevertheless found the Applicants in violation of Section 4(d) of the Act. Mr. Sangwa then attacked the Tribunals' finding that during the intervening period someone must have derived some pecuniary benefit from the money as mere speculation. Further, Mr. Sangwa argued that a fter saying that they were uncertain whether it was the Applicant or some other person who derived peculiarly benefit from the money, the Tribunal should not have made the recommendations it made because the recommendations had no basis. Finally, Mr. Sangwa submitted that J 9 the issue was whether the Applicants or somebody else derived peculiarly benefit from the money, but the decision of the Tribunal dwelt on the National Assembly money being diverted. According to Mr. Sangwa this decision was outside the four corners of Section 4(d) of the Act and it must be quashed for illegality. Mr. Simeza, another of the Applicants' learned counsel, pointed out that illegality is defined in the case of Council of Civil Service Unions Vs Minister for the Civil Servicel1J as failure by a decision maker to understand correctly the law that regulates his decision making power or fails to give effect to it. It was Mr. Simeza, submission that this case manifests the Tribunals inability to understand the Act and generally the law relating to decision-making by Tribunals. As an example Mr. Simeza quoted some excerpts from the Tribunal's report at Page 41. On that page the Tribunal first said:- " There has not been any explanation on why and who kept the K2 billion from 26th April to 7th May, 2001. " Then later on the same page the Tribunal said: «No evidence has been led or adduced on the audit query apart from TW6's and TWB's". According to Mr. Simeza, these excerpts show a misunderstanding on the part of the Tribunal as to who was to call or look for evidence during the inquiry. It was Mr. Sinieza's submission that it was the duty of the Tribunal to find answers to these questions but it failed to do that and instead shifted the burden on the Applicants who were the subjects of the allegations. He said that the Tribunal treated the matter as if it was a civil or criminal trial where parties bear the burden of adducing evidence. Citing the case of R . V. National Insurance Commissioner Ex Parte Viscusif2J, as authority, Mr. Simeza submitted that in a Tribunal J 10 the proceedings should not be treated as a law suit between opposing parties but as an inquiry before an investigating body charged with finding out what happened. It was Mr. Simeza'a submission that instead of drawing inferences the Tribunal should have called the relevant witnesses to explain the matters that were not clear. As an example, Mr. Simeza gave the audit query as an issue over which the Tribunal could have called witnesses to explain. He said the Tribunal's duty is to investigate and that is why Section 4(7) of the Act says the Tribunal m ay request assistance of other investigative organs of the state including the Police and Anti-Corruption Commission. On this ground, Mr. Simeza ended by submitting that the Tribunal being an investigative organ, should not expect the person being investigated to volunteer information. He submitted that the findings of the Tribunal were founded on errors of law because the Tribunal asked itself wrong questions and made recommendations based on misapprehension of the law. That being the case, Mr. Simeza submitted, the decision is illegal. On irrationality, Mr. Simeza made a long submission, the sum and substance of which is that the Tribunal's decision was irrational because it is not supported by evidence. Citing the case of Sagnata Investments Limited Vs Norwich Corpnf3J as authority, Mr. Simeza submitted that in Judicial Review proceedings it is the duty of the Court to ensure that a decision made by a decision maker has a rational basis. Mr. Simeza then went on to catalogue failures on the part of the Tribunal to make findings whether the K2 billion returned was not the earlier K2 Billion withdrawn; the person supposed to authorize the withdrawal of the K2 Billion. He then submitted that the Tribunal's recommendation to prosecute Applicant Dr. Peter Machungwa for a criminal offence had no basis as the Tribunal made no finding of any criminal conduct by the Applicant Dr. Peter Machungwa. He said this recommendation is, J 11 therefore, unreasonable and suggests that the Tribunal was influenced by extraneous factors on the whereabouts of the K2 Billion between 24th April 200 I and 7 th May 2001. Mr. Simeza submitted that there was no evidence that the Applicants had custody of the money as the Tribunal found. He said the Tribunal should have investigated this. Mr. Simeza then attacked the report of the Tribunal in terms suggesting that the report was worthless as it did not address and inves!igate the specific issues before it and consider whether these issues had been proved or not. On reliance by the Tribunal on investigations by the Anti-Corruption Commission Mr. Simeza submitted that it is contrary to the Act because there is no provision in the Act which authorizes the Tribunal to rely on an un solicited information from any other organ of the State. Mr. Simeza pointed out that Section 14(7) of the Act authorizes the Tribunal to request assistance from other investigative organs. But, he said, under Section 13 of the Act the Tribunal can request assistance from other investigative organs of the State only after it has been appointed. In this case, the Anti Corruption Commission statements relied upon by the Tribunal were taken before the Tribunal was appointed. Mr. Simeza then pointed out that the duty to investigate and make findings rests on the Tribunal. He said by admitting the statements from the Anti-Corruption Commission which statements contain conclusions and recommendations, the Tribunal abdicated its responsibility. Further, Mr. Simeza attacked the report from the Anti-Corruption because it is from a complainant who is obviously partial while under Section 14(7) of the Act, the Legislature intended assistance from an J 12 impartial organ. According to Mr. Simeza, the admission of the statements by Anti Corruption Commission was ultra vires the Act and a breach of natural justice. He ended by praying that the application be allowed. Mr. Jalasi, learned Principal State Advocate, submitted that, with respect to illegality, the issue is whether or not the taking of the K2 billion whose whereabouts was not known for seven days does not constitute an unauthorized use as envisaged by Section 4(d) of the Act. Mr. Jalasi submitted that on the evidence the Tribunal found that the Applicants had no authorization of having the K2 billion. It was Mr. Jalasi's submission that under the Finance (Management and Control) Act only Permanent Secretaries who are controlling officers have the authority to have care and control of Ministerial funds. Citing the definition of illegality as stated in Council of Civil Service Unions and Others Vs Minister of Civil Servicef1J, a case which C Mr. Sangwa and Mr. Simeza also relied upon and also a case that was cited with approval by the Supreme Court in Derek Chitala Vs Attorney Generalf4J, Mr. Jalasi submitted that the Tribunal interpreted Section 4(d) . of the Act correctly and was correct to find that the Applicants had an unauthorized use of the money. On irrationality Mr . Jalasi referred to the Chttala case again where there is the definition of irrationality quoted from the Council of Civil Service Union case where it was held that for a decision to be irrational, it must be so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. J 13 It was Mr. Jalasi's submission that in view of the evidence which was uncontroverted by the Applicants who opted to remain silent, the Tribunal's decision was not one which was so outrageous in its defiance of logic that no person who would have the same set of facts would not have arrived at. He went on to say that in view of the position taken by the Applicants who did not say a word, there was no any other sensible logical conclusion than the one the Tribunal arrived at. It was Mr. Jalasi's submission that in the absence of illegality, bad faith and irrationality the decision of the Tribunal which consisted of Supreme Court Judges and a High Court Judge should stand. On breach of natural justice Mr. Jalasi pointed out that natural justice means that ( 1) a party should be given an opportunity to be heard and (2) that no man should be a Judge in his own cause. On the submission by the Applicants' counsel that the statements from Anti Corruption Commission worked to the prejudice of the Applicants, Mr. Jalasi submitted that there was no such prejudice. He said that the test fof._ bias is as stated in R V Goughf5J. The correct test is whether in the circumstances of the case the court considers that there appeared to be a real danger of bias. Mr. Jalasi pointed out that in this case, the Tribunal held that in these proceedings the Anti Corruption Commission was not an investigative organ but a complainant. It was Mr. Jalasi's submission that if the Tribunal erred, it erred on the side of the Applicants. Finally, Mr. Jalasi said that although he conceded that there were some procedural irregularities the Tribunal followed the correct procedure. Mr. Matibini and Mr. Nchito argued the second and third Respondent's case. Mr. Matibini submitted that Judicial Review is concerned with the review of the decision making process and not with merits of the decision. That J 14 being the case, Mr. Matibini submitted, it is not for this court to substitute the determination made by the Tribunal with that of its own. As authority for this statement Mr. Matibini cited the case of Zambia Democratic Congress Vs Attomey-Generalf6J and many other cases on the subject. He said the Tribunal did fairly treat the Applicants. In reply to the submissions that the Tribunal's finding that Section 4(d) of the Act was breached was erroneous in law because there was no evidence that either the Applicants or any other person derived pecuniary benefits from the money, Mr. Matibini submitted that it is necessary to advert to Section 4(d) of the Act. It was Mr. Matibini's submission that the findings by the Tribunal that the Applicants who were not controlling officers were in possession of the K2 billion without lawful excuse has not been challenged. He said the actions of the Applicants amounted to conversion of government property as there is no reasonable and credible explanation for the Applicant's possession of a colossal sum of K2 billion for 14 days. Mr. Matibini found it incredible and inconceivable that such a thing could ever happen. Consequently, Mr. Matibini submitted, the Tribunal was on firm ground when it held that Section 4(d) of the Act had been breached. On irrationality Mr. Matibini submitted that the Tribunal's finding that the Applicants diverted the K2 billion to unauthorized use and the finding that whoever had the custody of the money during the intervening period must have derived pecuniary benefit from it, can hardly be said to be irrational or contradictory as contended by the Applicants. He said in fact the inference drawn by the Tribunal is on the facts inescapable and credible - considering that the property was cash. On expunging the statements recorded by the Anti Corruption Commission Mr. Matibini submitted that there was no basis for J 15 expunging the statements because the witnesses confirmed the contents of these statements in their evidence. Regarding how the Applicants were treated, Mr. Matibini submitted that the Tribunal is a master of its own procedure. As authority for this proposition Mr. Matibini cited the case of R V National Insurance Commissioner Ex Parte Viscusi(2l. He pointed out that the Act itself does not say how the Tribunal would go about making the Inquiry. In concluding, Mr. Matibini submitted that the various authorities cited in all the submissions show that: - 1. Each case depends on its own circumstances. 2. There must be flexibility 3. There is duty to act fairly. In this case, Mr. Matibini submitted, the Applicants were given a reasonable opportunity to present their case. They were given the opportunity to give viva voce evidence but they elected to remain silent. On the submission that the Tribunal was influenced by the findings of the Anti Corruption Commission, Mr. Matibini submitted that there is no evidence to support that assertion. In support of this Mr. Matibini ref erred to a passage in the proceedings where the Tribunal members said it was up to them to decide where the truth lies. According to Mr. Matibini, this means that the Tribunal was alive to the need to act impartially and was not influenced by the statements obtained by the Anti Corruption Commission. Finally, Mr. Matibini submitted that the Tribunal was on firm ground when it made the various determinations. Mr. Nchito in his submissions endorsed the submissions by Mr. Matibini that there was no contradictions in the Tribunal's findings on the J 16 diversion of the K2 billion and deriving of pecuniary benefit from it. He said in fact the diversion is conceded by Counsel for the Applicants. Mr. Nchito submitted that in fact what happened was theft but for the purposes of these proceedings it was diversion of Government resource. He pointed out that cash is referred to as liquid and has a time value and that even if one returns the cash one drives benefit from it. He submitted that the Tribunal was on firm ground when it made the only logical inference in the wake of the overwhelming evidence which the Applicants elected not to challenge. It was Mr. Nchito's submission that contrary to what the Appellants say, it would in fact have been irrational if the Tribunal did not come to the conclusion they did. The issue to determine is the procedure and not the merits. Mr. Nchito concluded by saying that in fact this application is an attempt to appeal against the decision of the Tribunal instead of the legitimate remedy of Judicial Review. In reply to all this, Mr. Simeza submitted that it was the duty of the Tribunal to call the Applicants to give evidence on issues which the Tribunal wished the Applicants to respond to or testify on but the Tribunal did not do this. Mr. Simeza pointed out that the findings of the Tribunal had more questions than answers. Mr. Simeza emphasized that it was the duty of the Tribunal to investigate and to find answers to the questions and it was not open to the Tribunal to draw inferences. It was Mr. Simeza's submission that the Applicants' election to remain silent was not an issue. He said if the Tribunal wanted the Applicants to testify the Tribunal should have asked them to do so. Mr. Simeza then reiterated some of his earlier submissions which it is not necessary to repeat except to say that Mr. Simeza said it was not for the Applicants to challenge the evidence before the Tribunal as though they were accused persons appearing before a court. J 17 These are learned submissions and I commend counsel for their resourcefulness. I have carefully considered the evidence, the submissions of counsel and the authorities cited therein. As Mr. Matibini rightly submitted, and counsel for the Applicants, from the current of their submissions, do not contend otherwise, the purpose of the remedy of Judicial Review is not concerned with the merits of the decision but with the decision making process itself, Further, the purpose of the remedy of Judicial Review is to ensure that the individual is given a fair treatment by the authority to which he has been subjected; but it is not part of that purpose to substitute the opinion of the Judiciary or of the individual Judge for that of the authority constituted by law to decide the matter in question. These principles were stated in the cases on the subject cited to me by counsel and were restated by the Supreme Court in the recent case of Nyampale Safaris (Z) Limited and Four Others Vs Zambia Wildlife Authority and Six Others<7J . I think it will be appropriate to deal with procedural matters first. Mr. Simeza, one of the learned counsel for the Applicants, spent sometime in an attempt to show that the Tribunal did not appreciate the procedures in a Tribunal; that the Tribunal treated the proceedings as a litigation between parties where parties bear the burden of proof. And Mr. Matibini, one of the learned counsel for the Second and Third Respondents spent a lot of ammunition to shoot down these submissions. As Mr. Matibini rightly submitted, the Act does not provide the procedure to be followed by the Tribunal constituted under the Act. Citing the case J 18 of R V National Insurance Commissioner Ex Parte Viscusif2), as authority, a case also cited by Mr. Simeza in his submissions, Mr. Matibini submitted that the Tribunal was a master of its own procedure. I agree with these submissions. The procedure adopted by the Tribunal was that they heard the witnesses complaining against the Applicants; these witnesses were cross-examined by the Applicanfs counsel and re examined by the Respondent's counsel. After the complainant's had closed their case the Applicants elected to remain silent, I take it on the advice of their counsel. The Tribunal was entitled to adopt this procedure and the Tribunal cannot be assailed for adopting the procedure they chose in going about the inquiry. Mr. Jalasi in his submissions conceded to some procedural irregularities. I do not see those irregularities on the face of the Tribunal's record. Some of the reasons Mr. Simeza advanced to support his submissions that the Tribunal did not understand how they were to go about the inquiry was the Tribunal's failure to call witnesses to provide answers on some of the issues where the Tribunal said there had been no evidence adduced. Mr. Simeza submitted that the Tribunal treated the Inquiry as a civil or criminal trial where parties bear the burden of proof. In his reply to the submissions by counsel for the Respondents Mr. Simeza went as far as saying that it was the duty of the Tribunal to call the Applicants to give evidence on issues which the Tribunal wished the Applicant to respond to or testify on but the Tribunal did not do that. He said the Applicants election to remain silent was not an issue. I find these submissions untenable. Mr. Simeza heavily relied on the case of R V National Insurance Commissioner Ex Parte Viscusif2J, a case on which the Respondents also rely. In that case Mr. Viscusi was J 19 claiming injury benefits. Mr. Viscusi was not accused of any wrong doing like the Applicants in this case. What the Tribunal was investigating was the disablement of Mr. Viscusi. Mr. Viscusi did not keep quiet. He described his disablement and the Tribunal investigated the disablement, with Mr. Viscusi talking. In this case the Applicants are accused of serious wrong doing under an Act of Parliament, the breach of which leads to loss of Ministerial office AND seat in Parliament and the Applicants who were represented by able counsel elected to remain silent. In the event, the R V National Insurance Commissioner Ex Parte Viscusil2 l case is relevant to this case only to the extent it states that the Tribunal is a master of its own procedure and that it is the duty of the Tribunal to investigate the matter before it, as the Tribunal in this case did. So what the issue boils down to is that the Tribunal failed to call witnesses to shed light to some issues on which the Tribunal was not clear. Issues like who derived pecuniary benefit from the money, the audit queries etc. have been cited. In the circumstances of this case, I find these issues peripheral and they do not go to the kernel of the matter that was before the Tribunal. As Mr. Matibini and Mr. Nchito rightly submitted, the fact that the Applicants who had no authority to handle Government money took a staggering K2 billion from the National Assembly and for 14 days no one knew where this money was is beyond doubt. Some 14 days later, the Applicants brought back the equivalent of K2 billion, but even then after someone blew a whistle. So the real issue in this case is what happened to the money during the intervening period. As to what happened to the money is a fact that was peculiarly within the knowledge of the Applicants. So which witness should the Tribunal have called to testify to a fact which was within the peculiar knowledge of the Applicants. The only witnesses to this peculiar fact . T 20 were the Applicants. The Tribunal gave the Applicants the opportunity, to explain this peculiar fact but they elected to remain silent. I have no doubt on advice of their counsel. What else could the Tribunal do. Mr. Simeza urged that the Tribunal should have asked the Applicants to testify. The Tribunal did ask the Applicants to testify but they kept quiet. The Tribunal could not commit the Applicants to prison or flog them to induce them to testify on the peculiar issue. In the circumstances the tribunal did its investigative duty properly. In the result, the Tribunal cannot be accused of procedural impropriatory. As I see it the crucial issues are whether there was illegality, irrationality and whether the Applicants were treated fairly before the Tribunal. The question of the Tribunal not having properly followed the procedure does not arise in this case, I will deal with the issue of illegality first. Mr. Sangwa, after drawing the court's attention to the definition of illegality in de Smith 5 th Edition at P25, submitted that for one to contravene Section 4(d) of the Act one must divert and acquire pecuniary benefit from Government properly. According to Mr. Sangwa these ingredients were not satisfied in this case. He pointed out that while the allegation that the money was used for MMD Convention was not proved, the Tribunal nevertheless found that the Applicants violated Section 4(d) of the Act. He argued and submitted that the finding by the Tribunal that during the intervening period someone must have derived some pecuniary benefit from the money was mere speculation. It was Mr. Sangwa's submission that the Tribunal having been uncertain as to whether the Applicants or some other person derived pecuniary benefit from the money, the Tribunal should not have made the recommendations because they had no basis. Finally, Mr. Sangwa J 21 submitted that the issue was whether the Applicants or somebody else derived pecuniary benefit from the money, but the Tribunal dwelt on the National Assembly money being diverted. According to Mr. Sangwa the decision of the Tribunal being outside the four corners of the Act must, therefore, be quashed for illegality. In supplementing Mr . Sangwa's arguments and submissions on illegality, Mr. Simeza, another counsel for the Applicants, submitted that this case manifests the Tribunals inability to understand the Act and generally the law relating to decision making by Tribunals. After referring to the excerpts I h ave mentioned a bove, relating to who kept the K2 billion and about audit query, Mr. Simeza argued and submitted that the Tribunal misunderstood the inquiry altogether. He argued that the Tribunal misunderstood as to who was to call or look for evidence during the inquiry. He submitted that the d uty was on the Tribunal to find the answers to the questions raised in the excerpts I have referred above. But , Mr. Simeza submitted, the Tribunal failed to do that and instead shifted the burden the Applicants the subjects of these allegations. Citing the case of R V National Insurance Commissioner Ex Parte Viscusi12 J as authority Mr. Simeza submitted that in a Tribunal the proceedings should not be treated as a law suit between opposing parties but as an inquiry before an investigating body charged with finding out as what happened. He said instead of drawing inferences the Tribunal should have called the relevant witness to explain the matters that were not clear. He pointed out that the Tribunal's duty was to investigate and that is why Sectjon 4(7) of the Act empowers the Tribunal to seek a ssistance of other investigative organs. He submitted that as an investigative organ the Tribunal should not expect persons being investigated to volunteer information. He ended by submitting that the Tribunal's findings were founded on errors of law J 22 because the Tribunal asked itself wrong questions and made recommendations based on misapprehension of law and, therefore, the decision was illegal. Mr. Jalasi, the Principal State Advocate, for the first and fourth Respondents submitted that the Tribunal correctly interpreted Section 4(d) of the Act and was correct to find that the Applicants had an unauthorized use of the money. Mr. Matibini, for the second and third Respondents submitted that Section 4(d) of the Act was breached. He pointed out that there was no dispute that the Applicants who were not controlling officers were in possession of the K2 billion without lawful excuse. According to Mr. Matibini, the Applicant's actions amounted to conversion of the Government property and there was no reasonable and credible explanation for the Applicant's possession of the K2 billion for 14 days. For this reason, Mr. Matibini submitted that the Tribunal was on firm ground when it held that Section 4(d) of the Act had been breached. In endorsing, Mr. Matibini's submissions on diversion and pecuniary benefit, Mr. Nchito submitted that in fact the diversion is conceded by the counsel for the Applicants. Mr. Nchito pointed out that what in fact happened was theft which for purposes of these proceedings was termed diversion of Government resources. It was Mr. Nchito's submission that in terms of cash, even if one returns it one must have derived benefits from it. He submitted that on the overwhelming evidence the inference the Tribunal came to was the only logical. It was Mr. Nchito's submission that if the Tribunal came to a different conclusion it would in fact have been irrational. He concluded by saying that the issue is one of procedure and not merit and that this application is an attempt to appeal J 23 against the decision of the Tribunal instead of the legitimate remedy of Judicial Review. After perusing the Report of the Tribunal and considering these submissions, I find myself prepared to accept the submissions by Mr. Sangwa and Mr. Simeza, that the Judges who s at on the Tribunal did not appreciate the law in Section 4(d) of the Act. However, I do not accept the submission that the Judges did not appreciate the law relating to decision making by Tribunals. The Tribunal did not express itself in the happiest and clearest terms. They went in circles. There are expressions like the money was converted but that it was not known whether the Applicants or someone else derived pecuniary benefit from the money; that whosoever kept the money during the intervening period must have derived p ecuniary benefit from it. These findings and inferences show that the Tribunal misdirected itself in law. As Mr. Matibini submitted to decide whether the Applicants breached Section 4(d) of the Act one h as read that Section. For completeness I reproduce the entire Section 4 of the Act. It reads: - "4. A Member shall be considered to have breached the code of conduct if he knowingly acquires any significant pecuniary advantage, or assists in the acquisition of pecuniary advantage by another person, by - (a} improperly using or benefiting from information which is obtained in the course of his official duties and which is not generally available to the public; (b} disclosing any official information to unauthorized persons; (c} exerting any improper influence in the appointment, promotion, or disciplining or removal of a public officer; J 24 (d) directly or indirectly converting Government property for personal or any other unauthorized use; or- (e) 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 Members or pursuant to a contract/or which.full value is given." On a proper reading of the law in section 4(d) of the Act it cannot be serious argued that the Applicants did not breach that Section. As counsel for Respondents argued and submitted it is beyond doubt that the Applicants diverted K2 billion belonging to the Government and kept the K2 billion for 14 days without any colourable authority to do so. For me, having regard to the evidence that was _staring it, I find the Tribunal's conflicting findings and inferences staggering. The Tribunal beat about the bush, as they say, creating the impression in my mind that they were trying hard not to name or shame anyone. In the circumstances of this case, the Tribunal's finding that there was no evidence to suggest that the Applicants derived pecuniary benefit from the K2 billion is not only startling but also in sharp contradiction with their recommendation that Applicant Dr. Peter Machungwa be prosecuted for an offence under the Corrupt Practices Act. The recommendation against Applicant Dr. Peter Machungwa is certainly as a result of the huge deposit of K75,000,000.00 he made at his bank after the Applicants had taken the K2 billion. And, as counsel for the Respondents rightly pointed out, the evidence that the Applicants took . T 25 the K2 billion cash belonging to the Government and for 14 days no one knew where this money was and .that the Applicants were not persons authorized to handle and keep Government money, is not challenged. The arguments and submissions by Mr. Sangwa and Mr. Simeza tha t there is no evidence as to who derived pecuniary benefit from the money are in the circumsta nces of this case not tenable. As counsel for the Respondents s ubmitted the action of the Applicants taking the money and keep it without authority was in itself illegal under Section 4(d) of the Act. And I am at a loss to understand why the Tribuna l went on a search for who derived pecuniary benefited from the money when the Applicants who diverted the money were b efore them and declined to explain why they unlawfully kept government money for 14 d ays. In any case the Tribunal itself made a finding that the K2 billion was diverted by the two Applicants to some unauthorized use. This finding alone satisfied Section 4(d) which forbids direct or indirect converting of Government property to any other unauthorized u se. The Tribunal, therefore, misdirected itself in law on the effect of Section 4(d) of the Act. This misdirection was on the side of the Applicants because it led to the Tribunal itself looking for evidence of pecuniary benefit when that evidence was before it. Once it is established that a Member of Parliament has directly or indirectly converted Government property for any unauthorized use then that Member of Parliament has in terms of Section 4(d) acquired pecuniary advantage and breached Section 4 of the Act. This is what happened in this case. It was naive for the Tribunal to think that the Applicants could divert the K2 billion cash and keep for 14 days just for fan. I now deal with the issue irrationally. J 26 Mr. Simeza made long submissions on this issue but the effect of these submissions is simply that the Tribunal's decision was irrational because it was not supported by evidence. The response to these submissions by Mr. Jalasi and Mr. Nchito is that on the evidence, and the Applicant's having decided to remain silent, the only reasonable conclusion one would come to is the same as the Tribunal did. Mr. Nchito said in fact it would have been irrational if the Tribunal did not come to the conclusion they did. I have no difficulty and hesitation in deciding this issue. On the evidence that was before the Tribunal, and in view of what I have already said when dealing with the issue of illegality, one cannot seriously contend that the decisions and recommendations were irrational. Any other reasonable Tribunal presented with the facts that were available before the Tribunal would have come to the same conclusion and made the same recommendations. What the Tribunal was guilty of was only failure to effectively express themselves and fear to expressly name and shame the Applicants and those others who were involved, but not irrationality. As to the recommendation to prosecute Applicant Dr. Peter Machungwa, Mr. Simeza submitted that recommendation had no basis because the Tribunal made no finding of criminal conduct by the Applicant Dr. Peter Machungwa. Again this is another example of the Tribunal failing to express itself effectively. The Tribunal just jumped to the recommendation without expressing themselves that the Applicant Dr. Peter Machungwa's huge deposit of K75,000,000.00 in his account at the material time raised suspicion for which he could be prosecuted for having property disproportionate to his income as a Government Minister. On the report, I have no doubt that, that is what was in the J 27 mind of the Tribunal otherwise they could not have made the impugned recommendation. There was, therefore, a basis for the Tribunal to make the recommendation but the Tribunal in the fashion they wrote their Report did not want to expressly state the basis. Mr. Simeza raised issues of denial of natural justice. I find no basis for this complaint. As Mr. Jalasi rightly submitted the rules of natural justice require that no man should be a Judge in his own cause and that a person to be condemned should be given an opportunity to be heard. None of these rules was breached. As Mr. Matibini rightly submitted the Applicants were given an opportunity to be heard but they declined to say anything and they were fairly treated by the Tribunal. The issue of the use of statements gathered by the Anti Corruption does not and cannot amount to breach of the rules of natural justice. Mr. Simeza complained about the statements being taken outside the Act because they were taken before the Tribunal was in fact appointed and that these statements were from a partial investigative organ which is a complainant when the Act envisages evidence from an impartial investigative organ. The simple answer to all this is that the Anti Corruption Commission being a Complainant in these proceedings were entitled to bring all the evidence they had to support their complaint, whether the evidence was gathered before or after the appointment of the Tribunal. The qualms expressed by the Tribunal on the use of the statements from the Anti Corruption Commission were, therefore, misplaced. About partiality of the Anti Corruption Commission. Of course, the very fact that the Anti Corruption Commission is a complainant means that it is championing its case and is partial. In the same vein, there is no basis for expunging from the record the statements of the Anti J 28 Corruption Commission, which is a complainant. It is important to bear in mind that the Anti Corruption Commission was not called as a witness but is one of the complainants in these proceedings. For these reasons I have given, the Applicants have failed to prove their case on a balance of probabilities. Accordingly, I dismiss the Applicant's application and refuse the reliefs sought. The Respondents will have their costs to be taxed in default of agreement. DELIVERED IN OPEN COURT AT LUSAKA THIS 30TH DAY OF AUGUST, 2004. ~~~~-NGI JUDO~