Tribunal Falacies


We fully endorse and support the decision by petitioner William Harrington to take the Masebo Tribunal to the Lusaka High Court for Judicial review and interpretation.

It is very worrying that two Tribunals in a row have failed to make a clear connection between the administration of public policy and the imperative of ensuring adherence to moral and ethical principles; soundness of moral character and honesty in administering public policy. 

The final reports of both the Kabimba and Masebo Tribunals make no effort to articulate the danger of inconsistent application of public policy. The reports are studies in judicial prevarication that avoid dealing with moral issues underlying the complaint. They instead concentrate on the single pedantic “technical” detail involving “pecuniary” benefit which the petitioners did not raise in the first place.

 Surely it could not have been the law maker’s intention that Ministers should cancel contracts willy-nilly and dismiss employees without procedures and generally conduct themselves in an aberrant manner for as long as they did not benefit financially from such conduct.

This must be the narrowest possible interpretation of public policy administration. When an act offends policy it is wrong. It cannot be half wrong.

The suggestion that Minister Masebo who was found as a matter of fact, to have misconducted herself in a manner contrary to the law could be cleared because she did not benefit financially is an affront to common sense and more importantly an abrogation of the principle of good Governance which dictates that Ministers must operate in a predictable, transparent and open manner without bias.

In other words a Minister cannot cancel a properly constituted body in order to impose his or her own wishes without suffering censure or indeed sanction.

This is exactly what the Masebo and Wynter Tribunals seem to suggest. The very narrow interpretation offered by the Tribunals suggests that anarchy, derogation from procedure and failure to adhere to procedure is on order for as long as the officer perpetrating it does not receive financial benefit.

 The findings of the Masebo Tribunal have raised very fundamental points regarding personal responsibility and integrity in the performance of public duty in relation to public policy.

 The same issues were raised in the Wynter Kabimba Tribunal where culpability fell short on account of a failure by the complainants to demonstrate pecuniary advantage.

Pecuniary by definition means financial gain.

 Therefore the two Ministers fell short of being formally recommended for dismissal because no evidence was laid to demonstrate that their actions gained them “financial “advantage. By extension therefore, it can be concluded that unless a Minister receives financial gain, he or she is not guilty of a punishable offence.

This interpretation in many respects disregards the principle of collective responsibility for policy, which among other things states that “A person holding Ministerial office shall not do anything that is inconsistent with the principle of the collective responsibility of Ministers for the policy of the Government and the conduct of its affairs.”

This formulation in our view compels public officers, in this case Ministers, to act in a manner that is consistent and in harmony with public policy. Equally public policy means the principled guidelines by which Government executes policies. This involves the establishment of regulations and standards which guide policy implementers.

These guidelines and policies are necessary “to avoid abuses of power, corruption and dereliction of duty by powerful public and private institutions in order to cause them to operate with honesty, integrity, accountability and to put the public interest first.”

It is clear that integrity is the corner stone of good governance. Without integrity corruption will be  rife as there will be no level playing field  without which confidence in the Government will be undermined. 

‘Integrity’ refers to the application of values, principles and norms in the daily operations of public sector organisations. Governments are under growing pressure from the public to use information, resources and authority for intended purposes.