CJ needs no details to appoint Masebo Tribunal – Harrington

William Harrington has argued before the High Court that a Chief Justice does not need to be furnished with particulars of alleged breaches by a minister before the court can constitute a tribunal to probe a minister.

In his reply to the Attorney Generals submissions that acting Chief Justice Lombe Chibesakunda was within the law when she refused to constitute a tribunal to probe Minister of Tourism and Arts Sylvia Masebo for alleged abuse of authority on grounds that those pushing for Masebo’s probe did not provide particulars of alleged breaches; Harrington, through his lawyers PNP Advocates, argued that according to chapter 16 of the ministerial code of conduct, a person making an allegation must not provide ‘particulars’ of alleged breaches as that was a matter for the trial to deal with.

“ the definitions and examples of ‘particulars’ as provided by the respondents all refer to contested litigation before courts of law. The matter in casu, is distinguishable because it is dealing with improper exercise of administrative power and is not contested litigation in a court of law,” Harrington argued.

He further said that it is not up to the acting Chief Justice to judge whether one who seeks a tribunal has established a prima facie case but that it was the job of the tribunal to ascertain the validity of the arguments of those calling for a minister to be probed through a tribunal.

Harrington also argued that, if the so-called particulars were needed, he had provided them by clearly putting it to the court that ‘Masebo committed the alleged breaches by ordering the withdrawal of the list of successful bidders for hunting concession licences’.

“It is not within the compass of powers of the Chief Justice to demand particulars that make out a prima facie case before she could constitute a tribunal. Her said demands were illegal and in excess of the powers the Act gives her. If Parliament had intended for the Acting Chief Justice to vet the complaints, it would have made provision for this discretion….nowhere in the relevant is an applicant or complainant required to meet the criminal threshold of making out a prima facie case before the Chief Justice,” Harrington averred.

The environmental and governance policy activist also submitted that acting Chief Justice Chibesakunda misled herself when she assumed in her judgment that setting up a tribunal to probe a minister was at her discretion and not mandatory.

“Part IV of the Act which addresses Administration and Enforcement provisions in the Act repeatedly uses the word: “shall” entailing that the same are mandatory provisions. Section13 (3), in particular, is succinct in stressing that appointing a tribunal upon receipt of a complaint is mandatory by its repeated use of the word “shall,” his submission read in part.

Harrington further said that the structure or format of an applicant statement seeking for a tribunal to probe a minister is a non-issue as it is not provided for at law, and no precedent exists for such a demand.

On the ground that ‘that a tribunal to probe a minister is not something done lightly, but after a thorough consideration of facts’, Harrington argued that the said statement was merely sentimalism and not legal. He says this is so because public interest cannot be sacrificed for an individual’s reputation.

The High Court is set to deliver judgment on whether a tribunal that the applicant Harrington has prayed should be established to probe Masebo.




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