Evelyn Kangwa (Female) and Anor v Thandiwe Banda and Anor (2010/HP/960) [2010] ZMHC 114 (14 October 2010)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY ATLUSAKA BE1WEEN: EVELYN KANGWA (FEMALE) MARJORIE NAKAPONDA (FEMALE) AND THANDIWE BANDA THE ATTORNEY GENERAL I. -......,, 2010/HP/960 1 ST PLAINTIFF 2 ND PLAINTIFF tST DEFENDANT 21110 DEFENDANT BEFORE HON. MR. JUSTICE PHILLIP MUSONDA For tlte Plaintiffs: Mr. W. M. Kabimba of Messrs Kabimba & Company For tlte First Defenda11t: Mrs. I. M. Kunda of Messrs George Kunda & Company with herM~R. Mukuka For the Second Defendant: Mr. M. Kondo lo - Solicitor General w ith him Mrs. M. Kombe - Chief State Advocate Cases referred to: .. .__j 1. Turnkey Properties Vs Lusaka West Development (1984) ZR 85. 2. Ndovi Vs National Edu.cn.t:ion Company of Zambia Limited (1980) ZR 184. 3. American Cyanamid Company Vs Ethicon (1975) AC 396. 4, Shell and BP Zambia Vs Cott.idaris and Othem (1975) ZR 174. Legislation referred to: 1. Constitution a/Zambia Chapter1 of the Laws of Zambia. 2. The Finance (Control and Management) Act, Chapter 347 of the Laws of Zambia. -JI- JUDGMENT This is an application for an injunction against Mrs. Thandiwe Banda the first defendant in this matter. The order sought was to restrain her, her servants of agents or however otherwise, from acting in any capacity not supported by any law of the land restraining her from disbursihg moneys and distributing goods, which are not provided for in the estimates of Expenditure by the Parliament of Zambia in the absence of disclosing the source of the moneys and goods and also restraining her from using ...._,) official government facilities and services for party political activities until after trial of this action. A jointly sworn affidavit by the plaintiffs state that the plaintiffs are aware that from sometime 2009 to date, the first defendant has made several personal trips without the company of the President of the Republic of Zambia to various districts in Zambia, visiting traditional rulers and purported women's clubs. In the course of those visits the first defendant has disbursed money and various items and goods as gifts without disclosing the source and whilst acting in her presumed capacity as 'First Lady'. During these personal visits the first defendant uses government vehicles and aircraft ___ j from Zambia Airforce. In the months of August alone, the first defendant is alleged to have visited Mpulungu, Mbala, Mpika, Nakonde, Chiengi, Isoka and Chinsali districts using two Zambia Airforce helicopters and also using government motor vehicles. They alleged that during the first defendant's visit to Chiengi District, she expressed gratitude to the people for having voted for His Excellency the President in the 2008 presidential by-election and urged them to vote for him again in the 2011 Presidential and Parliamentary elections. It is these alleged actions that the plaintiffs asked this Court to injuct -J2- Mr. Kabimba relied on the affidavit in support and skeleton arguments. Mr. Kabimba submitted that unless this Court grants the plaintiffs an order of injunction the first defendant will continue to violate government financial regulations which prohibit unauthorized expenditure and unauthorized use of government facilities. He went on to argue that the use of such facilities contravenes regulation 7(1) of the Electoral Code of Conduct. He also cited Section 47 of the provisions of the Finance (control management) Act No. 15 of 2004 which provides as follows: ''An officer or other person shall not use any public moneys or public stores or other assets for any purpose not authorized by this Act or any other written law" The plaintiffs exhibited the annual budget for State House. Mr. Kabiamba cited the case of Tur11lce11 Properties Vs Lusaka West Develop111eutWwhere the Supreme C.ourt said: 11In an. application for interlocutory injunctions the possibilitlj of damages beittg an adequate remedy should always be considered" .. J The first lady swore an affidavit in opposition in which, she stated that she is lawfully married to the President of the Republic. And spouses of Presidents have been referred to as such by convention from the time of the first Republican President Dr. Kenneth David Kaunda. This convention is practiced beyond the Zambian territory. She produced a speech in which she pledged to work with existing non-governmental organizations. She went on that she is a patron of non-partisan associations like Female Football Association, Girl Guides Association, Ambassador SOS Villages in Zambia, Ambassador of Habitat for Humanity-Women Build among others. The Ministers' Wives Club was formed before her ascendancy to the first ladyship. She produced the constitution of Organization of African First Ladies Against HN / AIDS and averred -J3- that this initiative had the blessings of the OAU Heads of States and Governments, the Extraordinary Session of the UN General Assembly. She stated her Association with non-governmental organizations is non-partisan. Her association with these organizations and clubs entails receiving donations in various forms from well wishers, which she utilizes in her charitable work and distribution to vulnerable groups and that she is entitled to give moral and political support to the spouse the same way spouses of opposition political partip:c; .support their spouses. ....__,,I By convention, the office of the first lady is entitles to certain privileges and benefits i.e. transport, security, support staff, air travel, fuel, food etc and that former spouses are entitled to benefits by law. The non use of governmental resources applies during political campaigns. She went on that even Ministers, Deputies and Senior Government Officials' spouses use governmental facilities. The affidavit concluded by an averment that the same applies to the office of Vice-President. It was submitted by Mrs. Kunda, there is no serious question to be tried as the use of government vehicles by the first lady has been done by previous first ladies and it is a worldwide convention. The definition of convention is, .,,the way in which something is done that most people in a society expect and consider to be polite or the right way to do it". It was further submitted that even under the Electoral Act No. 12 of 2006, there is no violation occasioned by the first defendant. The plaintiffs are trying to create new conditions favourable to themselves or their political party. In the case of Turnkey Properties Vs Lusaka West Development Company Limited Vs Zambia State Insurance Corporati.on Limited, the SupremP. Co\Jrt said: .,, Att interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial, but it cannot, in our -J4- --.. ' considered view, be regarded as a device by which the applicant can attain or create new conditions, favourable only to himself'. In Ndovi Vs National Education. Compa1111 of Zambia Limited<2J, the Court held that: "Before grantittg an interlocurtory injunctiott, it must b.e shown that there is a serious dispute between the parties and the plaintiff must show 01t the material before Court that he has any real prospect of succeeding at ..._J the trial" . In American C11rmamid Compa1111 Vs Etlzico11.<3>, the House of Lords said: "One should establish that there was an arguable claim to the rig1tt that 1-te seeks to protect and the relief must be clear11 • The She ll a1Ld BP Zambia Vs Co1tidaris and Ot1ters<4l: 11A Court will not generally grant ,m interlocutory injunction imless the rigltt to relief is clear and unless the injunction is necessary to protect the plaintiff from irreparable injun1, mere inconvenience is 1iot enough. Irreparable injunJ means, "injury wl1icli is substanUal and can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired". For reasons that will be apparent later it is convenient to highlight constitutional and statutory provisions pertinent to this application. Article 121(2) of the Constitution reposes in the Auditor General the function and power to: -15- (b) satisfy himself that the mottey expended have been applied to the purposes for which they were appropriated by the Appropriation Act or in accordance with the approved suppl.ementary or in accordance with the Excess Expenditure Appropriation Act and that the expenditure conforms to the authority that governs it; (c) to audit the accounts relating to the general revenues of the Republic and the expenditure of moneys appropriated by Parliament, the National Assembly, the Judicature, the accounts relating to the stocks and stores of the Government and the accounts of such other bodies as may be prescribed by or under any law; (d) to audit the accounts relating to any expenditure charged by this constitution or any other law on the general revenues of the Republic and to submit a report thereon to the President not later than twelve months after the end of each financial year (3) The Auditor General and any officer authorized by him shall have access to all the books, records, reports and other documents relating to a1ty of the accounts referred to in clause 2; (4) The Auditor General shall not later than twelve months after the end of each financial year, submit a report on the accounts referred to in paragraph (c) of clause 2 in respect of that financial year to the President who shall, not later titan seven days after the first sitting of the National Assembly, and if the Pres.ide,tt ma1,es default in laying the report before the National Assembly, the Auditor General shall submit the report to the Speaker of the National Assembly ... ......... . (5) ......... .. . -J6- (6) in the exercise of his functions under clauses (2)(3) and (4) the Auditor General shall not be subjected to the director or control of any other person or authority The import of these constitutional provisions is that the Auditor General occupies a supreme position to ensure that money expended by governmental agencies are expended or applied for the purpose for which parliament allocated those resources. Not even the President of the Republic of can direct him in any way. The constitution designates him as the watch dog of compliance by government agencies with budgetary allocation. Section 16(2) of the Finance (Control and Management Act) is couched in these terms: (2) #The Auditor General shall have full access to all such accounts, documents, books and records of any statutory corporation or goventment agency as he deems necessary for the exercise of his functions under the constitution or any written law" (17) No officer or other person shall use any public moneys or public stores for any purpose not authorized by this Act or by any otlter written law Section 18 defines the controlling officer as: "An officer designated by the Minister of Finance as officer in charge of a head of expenditure in any one financial year and charged with the controlling of expendihlre on any public service under that head" -J7- Under Regulation 18, the Secretary to the Treasury shall send copies to the Auditor General of all supplementary provision warrants and Treasury Authorities immediately after Authorization. Under Regulation 27, Accounting Officers sh.r1l1 refer to their controlling officers any claim of unusual nature or any claim the validity of which is doubtful and any claim in respect of expenditure which, in their opinion, is not provided for in the approved estimates. In the event of an accounting officer receiving instructions to make a payment which he is not satisfied is covered by a financial authority he shall state his objection in writing to his controlling officer. Provided that, if an instruction is then given in writing by the controlling officer, a payment may be made or accepted, and responsibility for the payment then rests with the controlling officer, who will be held personally liable. After making the payment, the accounting officer shall inform the Auditor General and the Secretary to the Treasury of the circumstances. Regulation 35 cast a duty on controlling officers to respond to Auditor General's queries promptly and fully. Under Regulation 45 controlling officers may be required to submit memoranda to the Public Accounts Committee on issues raised by the J Auditor General. Regulation 47 casts a duty on the Secretary to the Treasury to provide internal audit teams. Regulation 49 spells out responsibilities of the Internal Auditors among them. (b) the safeguards for the prevention or prompt detection of fraud or loss of stores, cash or other governmental assets are adequate -J8- (h) that return.s of revenue or expenditure required by controlling officers are correctly prepared and promptly submitted Under Regulation 50 Internal Auditors will report errors discovered to the Controlling Officer, the Secretary to the Treasury and the Auditor General. It is clear from the foregoing that Parliament as allocator of resources through the Public Accounts Committee, as per practice chaired by an opposition member of Parliament through the instrumentality of the Auditor General, Secretary to the Treasury, Controlling Officers, Accounting Officers and Internal Auditors are constirutionally, statutorily and professionally obligated to ensure that there is no unauthorized expenditure or fraud. Could it therefore be said that the first defendant (first lady) has any role in directing, disbursing or controlling expenditure?. T think not as Parliament has cast that role on controlling officers who can be held personally liable for any unauthorized expenditure "r-~-- accounting officers. An injunction was sought to stop her from acting in any capacity not supported by law. This country has been independent since 1964 all first ladies in Zambia have enjoyed these facilities (three of her predecessors) and this is the practice all over the world. The United States, United Kingdom, the entire Commonwealth Africa, that this practice has attained the status of a 'Constitution Convention'. The first lady to the second Republican President Mrs. Chiluba set up the Hope Foundation an NGO which was identified with her, the first lady to the third Republican President Mrs. Mwanawasa set up the Maureen Mwanawasa initiative which carried out philanthropic activities. The current first lady in her speech exhibited as TB2 on 4th March 2009 at page 10-12 said: 111 want to join hands with your organization and help you all in my limited way. What I am saying is that I become part of all the charitable aud ti.ou-govermnenl,il organizations using my contracts to help the -J9- various organizations depending on need. Of course it will not be possible to help all organizations at once, but I trust that as need and opportunities arise, I can be called upon where appropriate and where I can help. In this way I might help raise resources for the many organizations without duplicating effotts by creating a new organization. As I have stated I want to be available for all NGO's which need my support". The speech demonstrated that the approach is non-partisan, the source of funds non-governmental, the philanthropic activities depersonalized. The seminal question is, if previous first ladies' charitable work which was even more personalized did not cause irreparable harm, how does the defendant's charity work cause irreparable harm, distributing goods to the need or poverty alleviation can cause irreparable harm?. What could she do with financial and other material resources donated for her onward transmission to the vulnerable, keep them, wont that be in breach of the intention of the donors?. This injunction on disbursement of government funds illustrates a serious misunderstanding by the plaintiffs, as i have demonstrated by quoting constitutional and statutory provisions in 'extensio' on how government funds are disbursed by controlling officers and what checks and balances are built-in in the government accounting system. You have an injunction being applied against a person who has nothing to do with receipts or payments of government revenue. The right to relief is not clear, within the context of Shell aud BP Zambia Vs Couidaris an d Others supra. In a nutshell, the application for an injunction was against a wrong parttJ as she has no role to play in receiving or spending governnient funds. No,evidence of abuse of public funds lras been laid. The assertion is therefore tangential. The assumption -110- there/ ore that she was abusing those funds is speculative. An injunction to stop her, as first lady from using government resources does not meet the test of irreparability of damage when this practice has gone on far forty four years. The point being made is that the plaintiffs have not demonstratively shown th.e irreparable damage nor in the circumstances can the balance of conven.ience lie in the plaintiffs' favour. While I am of the view that the Courts should not fetter 'Executive Accountability' which is 1 public interest litigation' or to put it simply actions against public officials by either condemning the plaintiffs in costs or holding that they do not -.___/ have sufficient interest, this is an injunction applied against a wrong party, which puts that wrong party to costs, which are privately borne and not publicly borne i.e. by the Attorney General and Tax Payer. It is important to think through deeply before making such unsettling applications. This was an application which a person of average comprehension should not have brought. The application is dismissed. Costs will be in the cause for this application. Simply put for this Court to grant an injunction against the first defendant would be violative of the constitution and the Financial (Control Management) Act, which statutes have appointed officers to receive, pay and audit the revenue of government. It ...__.1 could amount to an impermissive intrusion in the Auditor _General's constitutional function, the Minister of Finance, Secretary to the Treasury, Controlling Officers who are personally liable for an authorized expenditure and internal auditors' statutory functions. For the main matter the plaintiffs should file orders for directions within 14 days and it is so ordered. Delivered in Chambers o l co~ 0C')o4erL .. . ...... ··f" ............................................. 2010. Phillip Muson a HIGH COURT JUDGE -Jll- I · · - - · · · , .. - - I . ·