- Part IV: Preliminary legal issues.
During the proceedings of the Committee, the following preliminary legal issues arose-
4.1 Right of Audience of Hon. Job Sikhala as Legal Counsel for Hon Ndebele and Hon Sibanda
During theoretical evidence sessions, Hon. Job Sikhala appeared before the Committee intending to represent Hon Ndebele and Hon Sibanda. Both Hon. Ndebele and Hon. Sibanda were absent. The Committee observed that his appearance as counsel for the two accused Honourable members raised issues of conflict of interest considering his status as a Member of Parliament. The Committee was fully aware of section 69 of the Constitution which confers upon every citizen the right to be represented by a legal practitioner of his/her choice before any court, tribunal or forum.
The Committee’s apprehension was based on the fact that Hon. Sikhala could not wear two hats at the same time, one of being a Member of the National Assembly that had ordered the inquiry of the accused members and at the same time serve as legal counsel for the accused members. Hon. Sikhala argued that there was no provision in the law which prohibited him from representing the two accused Honourable Members. He further implored the Committee to distinguish between his roles as a sworn Member of Parliament and as a legal practitioner. Hon. Sikhala’s representations in seeking to appear for the accused members were debated extensively by the Committee. He, therefore, had to make a choice to either represent the four Honourable Members or to recuse himself from debating the accused Honourable members’ cases when presented in Parliament.
In response to the concerns raised by the Committee, Hon. Sikhala indicated that he would recuse himself during the debate when the report is eventually brought before the National Assembly.
The Committee, however, deemed his appearance inappropriate. The Committee observed that the request by Hon. Sikhala to represent the Members of Parliament was contrary to section 196 (2) of the Constitution and section 5 (2) of the Code of Conduct and Ethics for Members of Parliament as read with section 198 (b) of the Constitution. The foregoing provisions oblige public officers to avoid any conflict between their personal interests and their public or official duties. In light of the foregoing, the Committee resolved that Hon Sikhala could not assume both conflicting responsibilities. Following Hon. Sikhala’s disbarment, Mr. Musapatika, a legal practitioner from Hon. Sikhala’s law firm finally replaced Hon Sikhala and appeared as legal representative for the two accused Honourable Members.
4.2. Request for clarity on procedural matters by Advocate T. Zhuwarara representing Hon. Mliswa
Advocate Zhuwarara raised issue on whether the Committee would use an evidence leader and requested the general procedure to be followed during the inquiry. He further sought clarity on whether the Committee intended to prefer charges against his client and if convicted, would it pass sentence as previously witnessed in the case of Parliament versus Roy Bennet. Advocate Zhuwarara also threatened to press criminal charges against any witness who would be found to have perjured himself after the testimonies of Mr. Goddard and others before the Committee.
To address these concerns, Advocate Zhuwarara and his client were advised that Ms. Elizabeth Hove, an Assistant Counsel to Parliament, would serve as the evidence leader. The Committee further advised that the case before it was purely an inquiry and, therefore, was not a trial akin to court proceedings. The Committee advised that it would not be competent to pronounce a verdict and pass a sentence, given that its terms of reference only mandated it to make findings and recommendations to the National Assembly. Upon request, the legal practitioners were also given all the statements submitted in relation to the case.
4.3 Scope of Inquiry
Through his legal counsel, Hon. Mliswa objected to the extraneous allegations raised in paragraphs 7 to 9 of Mr. Goddard’s affidavit concerning a separate meeting between them. In his argument, he pointed out that the allegations raised were neither within the purview of the Committee’s present inquiry nor were they contained in the Herald article that prompted the inquiry. He, therefore, objected to the leading of evidence in regard to those particular allegations. The Committee considered Hon. Mliswa’s submissions and upheld the objection.
4.4 Objection to the Committee’s Terms of Reference
Hon. Mliswa further objected to the Committee’s Terms of Reference which mandated it to determine whether or not his conduct and that of his co-accused Honourable Members constituted a breach of privilege amounting to contempt of Parliament. He objected to the formulation of the terms of reference because in his view, parliamentary privilege and contempt of Parliament were different. After consideration of the argument, the Committee overruled the objection and proceeded to hear oral evidence.
Continued next page
(404 VIEWS)
