People v Christa Kalulu and Anor (25PA/056/2015) (28 October 2021) – ZambiaLII

IN THE SUBORDINATE COURT OF THE FIRST CLASS FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: THE PEOPLE VERSUS CHRIST A KALULU & PETER LU BAM BO Before Magistrate : SYLVIA MUNYINYA OKOH For the State : S. Muchula, N Kanyimbo, D. Ngwira & L. Lemba of Anti-Corruption Commission For the 1stAccused : L. Linyama of Messrs Eric Silwamba, Jalasi & Legal Practioners For 2nd Accused : G. Pindani of Messrs Chota Musaila and Pindani Advocates JUDGMENT CASES REFERRED TO: ► Mwewa Murano v The People (2004) Z.R. 207 (S.C.) ► R v Senior [1899] 1Q .B.283 ► Nabob Oil Co. v. United States 190 F.2d 478 (10th Cir. 1951) ► Chitambala Ntumba v The Queen (1963-1964) Z. AND N.R.L.R. 132 ► The People v Austin Chisangu Liato (Appeal 291 of 2014) [2015] ZMSC 26 ► Woomington v. OPP (1935) AC 462, 481 STATUTES REFERRED TO: J1 ► The Anti- Corruption Act No. 3 of 2010 of the Laws of Zambia ► Public Procurement Act No. 12 of 2008 of the Laws of Zambia ► Criminal Procedure Code Chapter 88 of the Laws of Zambia ► Penal Code Chapter 87 of the Laws of Zambia Others: 1. Black's Law Dictionary, 8th edition, West Publishing Company. 2. Online Wex Legal Dictionary J2 -- ! ~ ~ I,. I)~ ZAMBIA ;. . ; ;· ~. I'.•· r./ •,J [l .. r " t : ,ARy • I, I . lj• The accused stand charged with the offence of willful failure to 1co0mly wi,th appiic~ble· &ro'1fd&e or Nd\tati~~9.{o'. ~ guidelines contrary to section 33(2) (b) of the Anti-Corruption Act The_particulars 1bel~ : are that CHRISTA KALULU and PETER LU BAM BO on dates unknol n but Vt Au~lJj;-~q.11 and 30th September 2011 at Lusaka in the Lusaka District of the Lusaka P ovi~ce ~/ t~ ~~~LcJ~~mbia j intly and whilst acting together willfully failed to comply with applicable procedures or guidelines relating to procurement in the manner they signed the award of the contract to Plinth Technical Limited for the rehabilitation of 15.04 Kilometers Lusaka City Urban Roads, without the "no objection" from ZPPA, a matter concerning the Ministry of Local Government and Housing, a Public body. The accused persons pleaded NOT GUil TY to the charge. To prove the case beyond reasonable doubt, the prosecution called three witnesses. At the close of the case for the prosecution, the accused were found with a case to answer and invited to make their defence. They gave evidence on oath and A1 called one witness. PW1 was SYLVIA SICHONE a Procurement Officer who recounted that in January 2012, she was the Head of Procurement at the Ministry of Local Government and Housing, where her duties were to facilitate procurement for all departments inter a/ia. She recounted that in the same month of January 2012, she was called by officers from the Anti-Corruption Commission on how procurement of the rehabilitation of 15.04 Kilometers of selected urban roads in Lusaka was undertaken. She indicated to the officers that as per procedure, a request was received from A2's office as Director of the Department of Housing and Infrastructure Development (DHID). The tender document was prepared by a consultant and they advertised the tender in April 2011 with a closing date of 11th May. When the tender closed, an Evaluation Committee which she chaired evaluated the bid in line with the information in the bidding document. In the evaluation, there was representation from the user Department and Lusaka City Council Engineering Section. There were a number of bidders, among them Road and Paving and Plinth. Thereafter, an Evaluation Report (P1) was produced. The chairmanship and secretariat were offered by the Procurement and Supplies Unit. According to the Evaluation Report, it was recommended that the contract be awarded to Roads and Paving Z. Limited. After recommendation, a letter (P2) was written to ZPPA requesting for a 'no objection' by the Controlling Officer in her Department. ZPPA responded by letter (P3) giving the Ministry a 'no objection' through the institutional procurement committee. The 'no objection' was with regards the Evaluation Report. The procedure was that before the evaluation report could be submitted to the procurement committee, a 'no objection had to be obtained from ZPPA. The Evaluation Repo submitted and after the 'no objection', [!;t J3 ~G,sr JUD1c1-4R'y ; ,u DING . . ..... _c o-.,pL . 2o : . f j J . p ' A , f"( ~ '' ~ -~ G 1 · . 1 .; sf~ · ,-S · i ·. t , . ; - ~ x Jo· ~re ,,- . -~~'J)s ,L.. I - , - ... , it was presented before the Ministerial Procurement Committee (MPC) at a meeting held on 30th June 2011 and the recommendation in the procurement was in favour of Road and Paving. The meeting was chaired by Mr Chirwa who was Acting Permanent Secretary as A1 was out of office and she was the secretary. The minutes of the meeting (P4?) were prepared by her office. A request was made from the office of the Director of OHIO, A2 herein for the MPC to authorize the award of a contract for the rehabilitation of 15.04 Kilometer Urban roads in Lusaka to Road and Paving Z. Ltd. The MPC approved the recommendation and thereafter, authority was written by her office as Secretariat to OHIO to communicate the decision of the MPC to award the contract to Road and Paving Z. Ltd. On 12th July, A1 as Controlling Officer and Chairperson called for an emergency meeting. She requested to meet the MPC and there was no agenda item per se. PW1 was the secretary and A1 chaired the meeting. A1 indicated to the members that she had not sanctioned the meeting of 30th June 2011 and as such matters that were deliberated on in the said meeting were null and void. She also indicated that the decision she was making had nothing to do with the case but was a matter of principle as she had left instructions that all financial matters should be dealt with her authority. The members objected to the decision that some of the cases presented had already been implemented. The question was what would happen to the authorities that had earlier been given, considering the fact that it was not their mandate to ratify issues that had already been undertaken. After deliberations, A1 indicated that she would review all the cases and revert on the way forward in the next MPC meeting. She prepared minutes for the said meeting dated 12th July 2011 (P5). It is PW1 's further evidence that on 27th July 2011, the MPC held another meeting which she did not attend but she saw the minutes (P6) as she was shown by Mr Mphande. On 4th August 2011, another meeting was held to deliberate on the award of the said contract. The meeting was chaired by A1 and she was the secretary. In that meeting, A2's office made a presentation following instructions by the MPC to investigate the experience and capability of Plinth to determine if they could undertake the works. This was in line with the decision in the meeting held on 27th July 2011 by the MPC where an application was made for the MPC to rescind its decision of awarding the contract to Plinth. The reason for the change was after the introduction of the engineers estimate as part of the criteria. Ordinarily, the engineer's estimate ought to be introduced at evaluation stage and it is part of the evaluation. This time, it was introduced after evaluation. The engineer's estimate was issued by OHIO headed by A2. A Committee Paper was prepared by the Procurement Unit b,¥ Ms Kate Kangamba as Procurement Officer I., 2'5q~~~e=~: under her unit. The Paper was presented to the meeting of 21'ui July f gure..we t up and the 4' 1°HE JUD - olA -"GIrST ~~--r..- ~ ICtAR, J4 llllO N ~ ~O~PLE)( l '711 , 2s Jrtl i. i-"a7;~R~rilDE~~ ~ L p : r ox 30~\)2 2 - ---.---. LUSAKA figure for Roads and Paving was way below the engineer's estimate. It was thought that it would fail to perform at the low amount and the best evaluated bidder was Plinth. The case was deferred again to 5th August 2011 as they wanted to find out if the contractor could mobilise in a short time and also to check the equipment to ensure that it was readily available. Minutes (P7) of the said meeting were prepared. On 5th August 2011, another meeting was convened where the results were presented to the Committee. The meeting was chaired by A1 and she was the secretary. A2 was also in attendance, who presented findings to the Committee. Members were satisfied and authority was granted to award the contract to Plinth. Therefore, there was a change from Road and Paving to Plinth. During the change, a 'no objection' was not obtained from ZPPA. The minutes of the said meeting were prepared (PS). The resolution was conveyed to OHIO and a consultant prepared the contract documents. She generated a letter of clearance of the contractor to Attorney General for clearance of all the contract documents. The clearance was given and the contracts were signed. Under cross examination, she testified that at the time, there was a ministerial threshold and a Permanent Secretary could not go beyond K50,000,000.00 and the Ministerial Tender Committee could not go beyond K500,000.00. She could not remember the value of the tender in question but the bid was within the ministerial threshold. The engineer's estimate was supposed to be introduced at evaluation stage and it was a requirement. She did not include it because it had not been submitted and it was omitted. She approved without an engineer's estimate and while A1 was out, a letter was signed quickly seeking a "no objection" from ZPPA. The letter was written before the committee sat to approve the valuation. It was established that one who was recommended earlier had unrealistic figures and the correct person to be awarded the contract was Plinth. They decided to award the contract to Plinth. She further testified that a "no objection" letter was given. There was no law on "no objection" but there was a circular. She generated the letter to Attorney General who did not raise the issue of "no objection" and he gave a go ahead to sign the contract. As Procurement Officer, she did not advise the ministry not to proceed without a "no objection" the government did not lose anything in awarding the contract to Plinth but gained. It was her responsibility to prepare a "no objection" letter and not A2's. The "no objection" letter did not specify the contract and contractor to be awarded. A2 had no authority to award contracts and he signed the contract as a witness. The decision was made collectively and she was part of the decision. She did not inform the meeting that the contract could not be given to Plinth because there was no "no objection" because it had already been given. JS PW2 was JUSTIN MATIMUNA a Procurement Specialist at ZPPA whose duties included providing procurement advise on the Public Procurement Act, Regulations and Public Procurement Procedures to procurement entities inter a/ia. He had worked in that capacity for 20 years and he had a Graduate Diploma in Chartered Institute of Purchasing and Supply inter a/ia. He testified that in 2011, he was approached by ACC who sought clarification on 'no objection' by the Controlling officer in the Ministry of Local Government. The ACC officer showed him two letters. The first one was an application for 'no objection' (P2) for 15 kilometers selected urban roads in Lusaka, dated 10th June 2011, where a 'no objection' was granted to the Ministry of Local Government. The other letter was granting 'no objection'(P3). He explained to the officers that the Permanent Secretary was granted a 'no objection' by ZPPA and on cancellation of 'no objection' he explained to them that the application ought to start within the procurement entity by the Controlling officer applying to the procurement committee for cancellation. He further explained that if the Controlling officer needed to revive the procurement, she ought to have followed the same procedure for applying for a 'no objection' from ZPPA and the new 'no objection' would be given based on the new application. That reviewing procurement may entail amending the procurement probably by adding new evaluation criteria or changing the scope of the whole contract envisaged. He went on that the 'no objection' arises from the mandate of the ZPPA Circular N0.1 of 2011 which was issued to all Controlling officers; Executive Officers in Public service; Permanent Secretaries and spending agencies. The circular prescribes the procedure to be adhered to in terms of seeking a 'no objection' for procurement procedures and details the thresholds to be adhered to. For simplified bidding, the threshold was K50,000,000.00 and 500,000,000.00 un-rebased; and for open bidding, it was K500.00. It also provides that any procurement within the range of K50,000,000.00 and K500,000,000.00 requires review and granting of 'no objection'. He also testified that the practice in the public sector was such that a tender document prescribed the criteria of evaluation to be followed by the evaluation committee and situations may arise that would require use of new criterion in the evaluation. If a criterion did not have an engineer's estimate or budget line, the two could be reintroduced and be used for re-evaluation. The new criterion ought to be granted authority by the institutional procurement committee and the Controlling officer appoints an evaluation committee to re evaluate all the bids. The re-evaluation report is furnished to the institutional procurement committee followed by sending it back to ZPPA for a 'no objection'. If granted, it is sent back to the Controlling officer and tabled before the institutional procurement committee for award of the contract. ,- REPusuc OF Z'AMB-,A-- r • AifAGIST J~E JUDICIARY J6 ! ~ '3Ul~D!t-_JG _COMPLEX llffll_ s ]~ l / - -- PR h I A ' , , ,, J · ; · ~1: ' • , ' T -~ f 1uE " N - r p O &~A 2 ~ ~ LUSAK~ ·-·--•,, Further, he testified that the role of the Controlling officer is to ensure that procurement proceedings are conducted in accordance with the Procurement Act and subsisting legislation. The mandate is prescribed by the Public Procurement Act No. of 2008. Under cross examination, he testified that the requirement for requesting for another 'no objection' was not in Circular No.1 of 2011 but in the Regulations. He came as an expert and he knew that he was relying on the Regulation but he did not bring it because it was not requested for. PW1 's position that there was no need of going bc;1ck for another 'no objection; in case of anything was not correct and the answer to the inconsistency was provided for in the last paragraph of P9. P3 was a no objection to the tender process and the process was done in accordance to P3. ZPPA did not query the said tender. The Ministry underwent a public audit and if there was an illegality, the Auditor General could have queried it. Where there is an error, the Controlling officer can ask the entity to sit again. In a tender evaluation for works, an Engineer's estimate is mandatory. PW3 was MADIAM KADANGO a Senior Investigations Officer at ACC whose duties included supervision of investigations and investigations. she testified that in October 2011, the Task Force on Corruption received a report of abuse of authority in the manner in which the tender for roads in Lusaka was awarded to Plinth Technical Works. They investigated the matter and established that indeed, the tender was advertised and managed by Ministry of Local Government and Housing. The tender was advertised and bids were solicited. An Evaluation Committee was constituted to evaluate the bids which were received and a report was submitted to ZPPA for a 'no objection'. The recommendation was to award the tender to Roads and Paving Z. Ltd. The Permanent Secretary wrote a letter (P2) to ZPPA seeking a no objection which was granted by the letter (P3) to proceed through the MPC and award to the recommended bidder Roads and Paving Z. Ltd. The MPC sat on 30th June 2011 and the meeting was chaired by Acting Permanent Secretary Mr Chirwa. There were minutes for the meeting (P4) and the meeting approved the award to Roads and Paving Z. Ltd. Another meeting was held when A1 the substantive Permanent Secretary resumed office on 12th July 2011 and chaired the meeting. The decision of the meeting was that A1 annulled the decision of the meeting of 30th June 2011 thereby cancelling the award to Roads and Paving. A1 directed A2 who was Director OHIO to reevaluate the bids and incorporate the engineers estimate which was not there at the initial evaluation. The evaluation Committee was not reconstituted for reevaluation and there were minutes for the said meeting(P5). The MPC met again on 27th July 2011 where A2 requested the committee to rescind its earlier decision to award the contract to Roads and Paving; and recommended that the contract be award to Plinth ·~ - I / J7 TH ZAMBIA MAGIrS-TIO. •• .E JUDICIARY c "WLD1NG • ~: 2 S . .. -···]- ~;~• ' . d,.'. J PR1Nc,~-"L . . . J DtN p O ~AGISTRA~i r . 0.l( 30~a~ Lus.1o '<' ....... .. Technical Works. At a meeting of 4th August 2011, the MPC decided that A2 gets into direct negotiations with Plinth on specifics to do with mobilization, availability of machinery and capacity to complete the project within the period. There were minutes (P6) for this meeting. On 5th August 2011, a meeting was held by the MPC chaired by A1 where A2 reported that the negotiations were successful and sought that the MPC approves the award to Plinth. The MPC approved the award to Plinth. Thereafter, the contract (P10) was signed between the Ministry and Plinth. A1 signed on behalf of the Government and A2 signed as a witness. She went on that a no objection ought to have been sought from ZPPA to award the contract to Plinth but it was not. She got confirmation from ZPPA that there was need to start the process and obtain a no objection even if the first tender allowed it. Therefore, the procedure was not followed in the manner the tender was awarded to Plinth. According to her findings, it was A1 ' s responsibility to make sure that the procedure was followed in awarding contracts. She jointly charged her with A2 because he was the Director of the user department and he was actively involved from beginning to the end. Further, he signed the contract as a witness Under cross examination, she testified that before being awarded to Plinth, the contract was not awarded to anyone and it was supposed to be awarded to Roads and Paving. She was aware that when the decision was made, the committee had no sight of the engineer's estimate and she gathered that the engineer's estimate was part of the criteria. The decision to award Roads and Paving was rescinded because the engineer's estimate was not applied during evaluation. There was reevaluation by the MPC and the engineer's estimate was deployed. The guideline that was breached was the request to obtain a 'no objection' from ZPPA and it was in section 13 of the ZPPA Act. It was in the circular made pursuant to the Act and there was no procedure for obtaining a second 'no objection'. The accused obtained a no objection on the first contract and not the second one. They did not omit to get a 'no objection' but a no objection for the second contract. The circular did not talk about a second 'no objection' but it talked about thresholds which related to K50,000.00 and K500,000.00 rebased. The said contract did not fall within the threshold and it was for the sum of K81,1 50,950,067.00. She also testified that she arrested A2 because he was heading OHIO and he witnessed the contract. She did not know his job description. The procedure he did not follow was to ensure that a 'no objection' was obtained and according to P5, he was merely tasked to inquire on behalf of the MPC. She was not aware that at the time the MPC sat, the assumption was that the 'no objectio " aa al-[c:WJe::beeri Gbtain_e~d-..·. .. __ UC OF lAMSIA MA G'f -~TPH.E· J UOtCtAR) This marked the close of the prosecution's case. ~u LD NG cmAPL•E1ll 2 3 .. . .. .... ,; J8 ~ ' 1!9, . :~ ... j -~ PR1!'4 . · . .._ M ,,.....,,L .: c. s10E11; r ;:, O AGtSTRA E 2 ___a _o_x 30~0? LUSAKA DW1 was CHRIST A KALULU A1 herein who recounted that in 2011, she was Permanent Secretary in the Ministry of Local Government and Housing. She was also Controlling Officer in charge of supervision and accountability of all the Ministry material and financial resources. Her role in procurement was to ensure that procurement procedures were adhered to. On the contract in question, she was out of the country and when she returned, she found in the Evaluation Report (P1) that the said tender was awarded without consideration of the engineer's estimate. She asked the internal auditor and Head of Procurement to explain what had transpired' who advised that it was an error and it would be an audit query. Following that, a meeting was held by the MPC where she requested the committee to review the documentation and request the Procurement Department to introduce the Government Engineer's Estimate and establish which would be the best company to award the tender to. The committee requested the Procurement Department to consider all the tender submissions applying the engineer's estimate and submit to the MPC for reconsideration for the award. As Controlling Officer, she felt that it was important that they follow the guidelines to avoid potential inability for contractors to complete the contract or to over-charge. The decision was made collectively by the MPC. She did not make any singular decision to stop or award a contract. The Head of Procurement was charged to obtain 'no objection' in the Ministry and when she consulted her, she indicated that there was no need of a second 'no objection' as they had one. As a committee, they had a 'no objection' which was still valid. The 'no objection' letter had no company name and it referred to authority for them to award a contract. She was under the believe that they were duly guided by the technical experts, that they had a valid 'no objection', a position stated by PW1 in court. Under cross examination by Counsel for A2, she testified that she was the Controlling officer with respect to Government finances and it was her responsibility to ensure that Government contracts are properly implemented. A contract ought to be awarded by the MPC; and the 'no objection' does not specify who the contract should be awarded to. The subject of the 'no objection' letter was no objection to award contract for rehabilitation 15.04 Kilometers Lusaka Urban City Roads. According to P6, the lowest bidder was Roads and Paving and after applying the engineer's estimate, the lowest bidder was Plinth. The Attorney General approved the signing and awarding of the contract to Plinth. A2 signed as a witness and any one from the MPC could have signed. Under cross examination by the state, she testified that she was not in charge of the Procurement Department and the Department could not go ahead to procure without her authority. It was her responsibility to make sure that procurement procedures were adhered to and she supervisedl ~~ t. he also testified I 44AG.1s ,.[~f l J i L C JD o 1 r c : , A 7 . AMe1A I . f ,'JU1to1." ~~ Jg ·.:_MPLEx 2 S f . ~i -. ,,r,-, I J. ·....,,--·, PR"'A ,;;~L ( . &. p O Bo~'S T!f ATflC f\' r j Jo"' 0,, 2 · Lus,~k'_., that a 'no objection' ought to be obtained from ZPPA and it ought to be requested for in writing. It was the responsibility of the Controlling Officer to request for it and it was not a requirement that an evaluation report be submitted to ZPPA. What ought to be submitted is the information on the actual works. She could not recall PW2 saying that they submit both the request and evaluation report. After reading P2, she did not insist that she did not have to submit an evaluation report when requesting for a no objection. According to P1, the recommendation was for Roads and Paving and she did not know if it was the report submitted to ZPPA. PW1 said that it was the report submitted and the 'no objection' was granted after they submitted the report. She did not know if the evaluation report was what led to the granting of the 'no objection' but she was aware that ZPPA was aware that the recommendation was for Roads and Paving. She was aware that ZPPA was an over sight authority over procurement matters and one way by which that authority was exercised was by issuing 'no objection' to procurement. If there were irregularities, ZPPA would point them out to them and it did not raise any issue on the recommendation regarding engineer's estimate. ZPPA did not authorize them to grant the contract to Road and Paving through the letter. She did not nullify the proceedings that led to the recommendation and she did not know if Procurement submitted the recommendation to ZPPA after the subsequent meeting. She did not also know if the Procurement went back to ZPPA to inform them that they had added an engineer's estimate. She could not recall if they resubmitted the reevaluated report or if ZPPA was aware of it. Her understanding of 'no objection' was that they had no objection to awarding of the contract through the MPC and not to any particular contractor. It did not name who the contract was to be given. It stated that the contract was to be awarded by the MPC Further, she testified that A2's Department was the user Department in the transaction and it was not for it to ensure that the engineer's estimate was applied. His department's role was to prepare a brief for the works and the engineer's estimate was prepared by an independent engineer. She was not aware that A2 was in the meeting. In reexamination, she testified that she did not obtain another 'no objection' after reevaluation because there was already a 'no objection' to award the contract. DW2 was CHARLES KAPIPA CHISANGA a Procurement Specialist in the Ministry of Local Government and Housing. His duties were to manage and coordinate procuremen7ti at L~·i nistry. He had worked in that capacity at the Ministry for 9 years and at Ministry of Agriculture for He ~!~)b~CV (01) and three certificates (02). He recounted that he joined the Ministry in 2011 iaei;t~~0i'Pw~w-tr.ie PS. He · flµ 1c,~ -if& 1,4 went on that Procurements were conducted according to the ZPPA A · . . inis ry, haa-~~oi ~rement Uni o' · I i '- Coj, " ""~l.t::- 1 PR ... } c~ JlO l P 8~6~Gc s/ . ~ O 1 f"< . ·. ' ~ Jo.R--'4-,. 'D£--... <O< !: ~ IV r I.us ◄II'~ which was involved in the procurement of works, goods and services. It also had a Procurement Committee which was responsible of approving or rejecting procurements. He testified that the procurement of roads starts with identifying the need to procure road works, then the bill of quantities is prepared and sent to the Procurement Unit to determine the methods of procurement. There are several methods of procurement. There is the informal and formal tender. The formal tender had a threshold of K500,000,000 going up and it is an open tender where bidders are invited whereas for the informal tender, at least three quotations are collected. Under open tender, the tenders are advertised and a time line is given when the tenders must be submitted. After opening and closing, an evaluation committee is appointed by the PS. The evaluation committee evaluates all the bids using the criteria in the Solicitation document and make a recommendation of the lowest priced bidder after putting into consideration the engineer's estimate. The engineer's estimate is important as there can be no procurement without knowing the cost estimate. The recommendation is taken to the MPC and it may approve, reject or order reevaluation of the recommendation. It also has power to rescind its decision if new information is received. He also testified that between 2008 and 2012, ZPPA had issued a Circular requiring procurement entity to submit evaluations of K500,000,000.00 un-rebased and above for review. After evaluation by the Evaluation Committee, the Evaluation Report is sent to ZPPA for review. ZPPA would look at the number of bidders who participated; consider whether the evaluation was done in accordance with the ZPPA Act; also whether the ministry was within the threshold; and whether there was conformity with the criteria. Thereafter, the reviewers would either grant a 'no objection' or reject the process. If the process is rejected, the Ministry has to restart the whole process. In the event that they offer a 'no objection', it is given to the MPC. ZPPA only gives a no objection and not approve a contract. A 'no objection' is not an automatic approval of the award of a contract. The final authority to approve an award lies with the MPC and award is consummated after approval by the MPC. Furthermore, he testified that according to the Circular, procurements ranging from K50,000,000.00 to k500,000,000.00 are subject of simplified bidding and require prior review. All procurements above K500,000,000.00 are subject of open bidding or open selection method. He recounted that when he joined the Ministry of Local Government and Housing at the end of December 2011, his predecessor PW1 handed over the procurements which the Ministry was undertaking, the procurement in question inclusive. The process in the procurement was open tender and that the contract was awarded to Plinth. He went on that in the first place, t ere was no need for a 'no objection' because it Jll was an open tender which was excluded from being subjected to a 'no objection' by Circular No.1 of 2011 and he read the heading 'open' on page 2. He said that the passage was to the effect that open bidding is excluded from getting a 'no objection' because it is a very competitive method of procurement. He also testified that cancellation in a procurement process means cancelling the whole process such that it has to start and in the procurement in question, there was no cancellation. Under cross examination by Counsel for A2, he recounted that the MPC makes decisions collectively and are collectively responsible where they don't follow procedure in awarding a contract. However, in this matter, there they were only two accused persons when they were not the only ones who made the decision. When he joined the Ministry, he found A2 and his Department had separate functions from the Procurement Department. He also testified that ZPPA never queried the process of awarding the contract for rehabilitation of 15.04 Kilometers of roads and it was not A2's duty to write to ZPPA for a 'no objection'. Under cross examination by the state, he testified that he was not a human resource expert and he was not in the position to explain A2's job description. He also testified that the minutes he read did not talk about a second no objection or cancellation but talked about the reevaluation of the tender. In P5, DW1 said that all matters were nullified and he was not aware that this referred to the tender were Roads and Paving was recommended. He was aware that the contract was awarded to Plinth but not that it was awarded after nullification. The Procurement Unit generates a request for no objection and the letter has to be signed by the Controlling Officer. It was the responsibility of the Controlling Officer to ensure that procedure was followed. He was aware that Act No.12 of 2008 holds the Controlling Officer accountable if procedure is not followed. He was aware that DHID was the user department and responsible for generation of cost estimates but they did not apply for an engineer's estimate. A2 was the Director then and he was supposed to make sure that the engineer's estimate was applied. From his reading, he discovered that it was not applied and the first tender was nullified because there was no engineer's estimate. In reexamination, he testified that there was no nullification in this case but reevaluation in order to come up with a transparent outcome by looking at the engineer's estimate. DW3 was PETER LUBAMBO A2 herein and a retired Civil Servant who recounted that he was Director Housing and Infrastructure Development in the Ministry of Local Government and Housing from 1999 until his retirement in 2012. His duties were to plan, develop and implement infrastructure programs. These duties were assigned to him through a job description (D3) and lawful instructions. Page 2 spelt out his roles and J12 page 3, clause 4a that he was to report to the PS. He went on that his Department provided their procurement plan to the Procurement Unit and prepared specifications which were presented to the PS so that the Procurement Unit would prepare bidding documents and implement the procurement process. Once works were procured through the MPC and the contract signed, it was then handed over to OHIO to supervise the works and ensure successful completion. Thereafter, handover the infrastructure to the beneficiary local authority. On the contract in question, he recounted that the technical support for the project was given by East Consult and it provided the engineer's estimate which was basically a completed bill of quantity with prices filled in before the works are advertised. That the significance of the engineer's estimate was that they were costs and budget figures that the government ought to use to arrive at a reasonable cost for works of that nature. The information provided by the Consultant was handed over to the Procurement Unit to be the basis for the preparation of tender documents. After advertising and receiving bid documents from contractors, they set up an Evaluation committee. After evaluation of the bids, the PS makes a request to ZPPA to issue a 'no objection' to proceed with awarding the contract before a matter can be presented to the MPC which was the apex body for awarding contracts for deliberation and decision making. In this case, ZPPA issued a 'no objection' to the MPC to award the contract and the contract was awarded to Roads and Paving at their corrected bid sum of K67,793, 234, 586. 84. In a meeting chaired by DW1 on 30th June 2011, a proposal was made to rescind the earlier decision and award the contract to Plinth. He was directed by the MPC to reevaluate and renegotiate. Thereafter, the contract was awarded to Plinth. He signed as a witness in his capacity as sub-warrant holder and mere witness as any other member would. Further he recounted that the 'no objection' that was obtained was facilitated by the head of procurement who was responsible for all documents which were tabled by the MPC. He had no direct dealings with ZPPA in matters relating to procurement. Obtaining a 'no objection' was not his responsibility. He was an appointed member of the MPC and he was the only one arrested. Under cross examination by the counsel for DW1, he confirmed that the engineer's estimate in evaluation was necessary because it is the basis of decision making and that a 'no objection' was obtained. The indictment did not state the particular guideline that he breached and he could not recall the state bringing any guidelines he breached. The insistence of the MPC on reevaluation was what corrected the process. At the time of reevaluation, no contract was communicated to the bidder and the process of awarding had not been completed. J13 J Under cross examination by the state, he testified that at the time consideration was being made in relation to the contract, there was a requirement to obtain a new 'no objection and it was not the position that a 'no objection' ought to have been obtained from ZPPA before award of the contract. That there was no nullification at any stage and according to P5, there was no nullification. The recommendation in P1 was that the contract be awarded to Roads and Paving. This recommendation was endorsed by ZPPA and P2 was referring to the evaluation. Eventually, the contract was awarded to Plinth a different company. According to P3, the contract was not supposed to be given to Road and Paving. In re-examination, he testified that no contract was nullified and P3 was a 'no objection'. That was the gist of the evidence I received in this matter. I have carefully considered the evidence on record as well as the submissions. It appears to me not indisputable that the Ministry of Local Government and Housing advertised a tender for rehabilitation of 15.04 Kilometers Lusaka City Urban Roads. An evaluation committee was constituted and an Evaluation Report (P 1) was prepared wherein the committee recommended that the contract be awarded to Roads and Paving Z. Limited without consideration of an engineer's estimate. A 'no objection' was requested for and it was granted by ZPPA. Thereafter, the contract was awarded to Roads and Paving Z. Limited by the MPC in the absence of DW1 the then Controlling Officer. When DW1 returned, a meeting was convened which she chaired and it was resolved that the documents be reviewed and the engineer's estimate be introduced. After the review, Plinth Technical Works Limited was found to be the best bidder and the MPC awarded the contract to the company. It is also indisputable that at the time, DW1 was the Permanent Secretary and Controlling officer in the Ministry; and DW3 was the Director in the Department of Housing and Infrastructure Development. It is a fact that the Ministry of Local Government and Housing is a Public body. What has to be resolved in my view is, whether or not there was a requirement as a matter of procedure or guideline to obtain a 'no objection' from ZPPA after reconsideration of the documents that led to the award of the contract to Plinth Technical Works. The burden of proof rests upon the prosecution to establish this case and to do so beyond all reasonable doubt. There is no onus on the accused persons to prove their innocence, and any reasonable doubt in my mind entitles them to an acquittal. I am fortified by the Supreme Court in the case of THE PEOPLE v AUSTIN CHISANGU LIATO relying on the celebrated phrase of Viscount Sanky LC in the timeless case of lies and remains through out on the prosecution to prove its case against the accused person beyond reasonable doubt" Thus, I warn myself at the outset. Turning to the law that creates the offence, Section 33(2)(b) of the Anti-Corruption Act No. 38 of 2010 provides that: A person whose function concerns the administration , custody, management, receipt or use of any part of public revenue or public property commits an offence if that person willfully fails to comply with any law or applicable procedure or guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of public expenditures. 3) A person who commits an offence under this section is liable, upon conviction, to imprisonment for a period not exceeding five years. The above Act was repealed in 2012 by the Anti-Corruption Act No. 3 of 2012 whose section 34(2)(b) is couched in the same language as section 33(2)(b) of the Anti-Corruption Act No. 38 of 2010, the repealed Act. It is clear that the latter replaced the former. I should also mention that according to the particulars of offence, the alleged offence was committed in 2011 and at the time, the Anti-Corruption Act No. 38 of 2010 was in force. On the effect of repealed law, the Interpretation and General Provisions Act chapter 2 of the Laws of Zambia is instructive. It provides in Section 14 (3)(e) that: Where a written law repeals in whole or in part any other written law, the repeal shall not affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing written law had not been made. From the above law, it is clear that where a written law has been repealed by another law, the repeal ought not to affect any legal proceeding and that legal proceedings may be instituted as if the repealing written law had not been made. In this matter, it is alleged that the offence was committed in 2011 and at the time, the law in force was the Anti-Corruption Act of 2010, therehfa.fei.,,.t~e s~ 0),.ba_rred from instituting legal , · . . tsr,. ~E JU ,. 2',q proceedings pursuant to the said law. • f · 't t1u,0 L 'Ct41r~ 8 f,q I D1;.,; , ? ·~-... Geo '~•-.. .:. /] ......, /JPLEX 'f JlS PR ,v ~ . J' :1 < ' ) . p O B ~ o ~ f's"rl,( f~ · "10 E- ~ • Jo::u/f rv r ..._..:, l Us,4k.-1 Turning to the count, to prove the subject offence, the prosecution ought to establish the following elements that: 1. The accused persons' functions concerned administration, custody, management, receipt or use of any public revenue or public property; 2. They Failed to comply with the law or applicable procedure or guidelines relating to the procurement allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of public expenditures; 3. The failure was willful. Turning to the count, it is not in dispute that DW1 was the Controlling officer in the Ministry and her duties included supervision and accountability of all the Ministry material and financial resources. It goes without saying that her functions concerned administration, custody, management, receipt or use of public revenue or public property. It is also not in dispute that DW3 was Director DHID in the same Ministry, whose duties were to plan, develop and implement infrastructure programs. It is also clear from his job description that he was responsible for Government Resources and he was a sub-warrant holder. From his duties and responsibilities, it is clear that his functions concerned administration, custody, management, receipt or use of public revenue or public property. Therefore, I have no difficulties in finding that both accused persons' functions concerned administration, custody, management, receipt or use of public revenue or public property in a public body being the Ministry of Local Government and Housing and I find accordingly. Turning to Failure to comply with the law or applicable procedure or guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of public expenditures, the prosecution alleged that the accused persons failed to comply with applicable procedure or guidelines relating to procurement in the manner they signed the award of the contract to Plinth Technical Limited for the rehabilitation of 15.04 Kilometers Lusaka City Urban Roads, without the "no objection" from ZPPA, a matter concerning the Ministry of Local Government and Housing a Public body. It is PW2's evidence that the requirement of obtaining a 'no objection' is in Circular No. 1 of 2011 issued on 24th January 2011 by the Zambia Public Procurement Authority. A careful study of the said Circular reveals that the first part speaks to Simplified bidding and the second part to Open Bidding. To determine which part is applicable, it is imperative that the method used in the within matter is established. In this matter, it is PW1 's evidence that the process in question employed Open Bidding and this was confirmed by DW3 who said that what was used was Open Biddi g. tris 'dence is also corroborated by l?EPueL J16 fM 4 l . l 1 L ,._ G,sr r::,E Jio~F <A.1.1a, i ' ' ·. u CIA ·· , · f? 7 ~· ~ ,'\ ~ x • . . . IL_DING C Pi-,,,28 · ---::..._ 0 c,s:tR · ~~ o ·-. ~ d ~ ' the Evaluation Report (P1) which states under the background that they invited sealed bids from eligible bidders through an open tender advertisement in the two main daily newspapers. Clearly, the method of bidding used in the process was open bidding and I find accordingly. Turning to the said Circular, it provides as follows on Open bidding: All procurements with an estimated value above K500 million shall be undertaken using open bidding or open selection method and authorized for contract award by the procurement entity's procurement committee. The use of less competitive methods other than Open Bidding process, all Solicitation Documentations for Open Bidding/Selection and Evaluation Reports shall be subject to a prior review and granting of a "No objection" by a "Special Team of Inspectors" at the Zambia Public Procurement Authority. Section 2 of Public Procurement Act No. 12 of 2008 provides that: "open bidding" means a procurement method for goods, works and non-consulting services which is open to participation on equal terms by all eligible bidders through advertisement of the opportunity; "direct bidding" means a procurement method where a bid is obtained directly from a single bidder, without competition; Further, the Above Act provides as follows 25. (1) The objective of opening bidding shall be to obtain value for money and promote private sector participation through the maximum possible competition. (2) Except as provided for in this Act, a procuring entity shall use upon bidding for the procurement of all goods, works and non-consulting services 27. (1) The objective of open selection is to promote private sector participation to obtain the best possible shortlist in order to obtain value for money. (2) Except as provided for in this Act, a procuring entity shall use open selection for the procurement of all consulting services. J17 According to the above Circular, where less competitive methods were used, other than Open bidding, they ought to have been subjected to review and obtaining of a "no objection" from ZPPA. The Circular removed open bidding from the realm of those methods that had to be subjected to review and obtaining of a "no objection. It is therefore clear that open bidding was not subject to review and obtaining of "no objection. Therefore, it cannot be said that the accused did not follow procedure by not obtaining a "no objection" when the method used was open bidding. Ta king it further, assuming it was a requirement to obtain a "no objection", it is the evidence of all the witnesses that after evaluation, a "no objection" was obtained. After the MPC evaluated the bids with consideration of the Engineer's estimate, the Accused did not obtain a "no objection" and went ahead to award the contract to Plinth. It is PW2's evidence under cross examination that the requirement for requesting for another 'no objection' was not in Circular No.1 of 2011 but in the Regulations. The state did not refer to the said regulations and demonstrate that there was need to obtain a second no objection. The state did not produce any law or guideline to show that there was need to obtain another "no objection" after the first one. Therefore, it is not clear which guideline or law the accused breached by not obtaining another "no objection" from ZPPA. More so, the reading of the request for a "no objection" (P2) reveals that it was for the granting of a "no objection" to enable the Acting Permanent Secretary submit to the MPC for approval. The letter granting a "no objection" (P3) from ZPPA reveals that the authority granted to the Acting Permanent Secretary was a "no objection" to award a contract for the rehabilitation of 15.04 KM of selected urban roads in Lusaka Province though stated as 15.4 KM which in my view was just an error, as it is clear from the request (P3) that it was for the 15.04 KM. From this and Circular No.1 of 2011, my view is that review and "no objection" was to the process and not to a particular company that the contract was to be awarded to. This being the case, I am of the view that with regards the awarding of the contract, a "no objection" was already obtained and this is in line with PW1 's evidence that the "no objection" letter did not specify the contractor to be awarded the contract. Therefore, it cannot be said that the award of the contract to Plinth was irregular because a "no objection" was not obtained. The other ingredient of the offence charged is that the failure to follow procedure ought to have been willful. This is the mens rea of the subject offence. Assuming the procedure was not followed, could it be said in the circumstances that the failure was willful? J18 Both the Anti-Corruption Act and the Penal Code Act offers no definition of the word 'willful' for the purposes of this offence, neither is it defined anywhere in the Zambian authorities. In the persuasive case of R V SENOIR, willfully was defined to mean 'deliberately and intentionally, not by accident or inadvertence'. In NABOB OIL CO. V. UNITED STATES, it was stated that "In some penal statutes the word willful means that the offense must be committed malevolently, with a bad purpose or an evil mind. These offenses ordinarily involve moral turpitude but in those statutes denouncing acts not in themselves wrong, such an evil purpose or criminal intent need not exist. It is sufficient if the act was deliberate, voluntary and intentional as distinguished from one committed through inadvertence, accidentally or by ordinary negligence. JI The Black's Law Dictionary defines willfully as 'voluntary and intentional but not necessarily malicious' it goes further that' the word 'wilfu/'or 'willfully' when used in the definition of a crime, it has been said time and again, means only intentionally and purposely as distinguished from accidentally or negligently and does not require any impropriety ... The Wex Legal Dictionary states that: In the context of criminal Jaw, "the word 'willful' when used in criminal statutes with respect to proscribed conduct relates to an act or omission which is done intentionally, deliberately or designedly, as distinguished from an act or omission done accidentally, inadvertently, or innocently. JI It follows therefore, that for any act which is called into question to be willful, it must have been done by the offender deliberately, purposely or intentionally or by design and not accidentally, negligently or inadvertently. In this matter, there is no evidence to the effect that as a procurement expert, PW1 or any other advised the accused on the requirement of obtaining another "no objection" after considering the bids with the engineer's estimate. It is PW1 's evidence that the "no objection" letter did not specify the contract and contractor to be awarded the contract. It is also her evidence that she did not inform the meeting that the contract could not be awarded to Plinth because there was no "no objection" as it had already been given. It is clear from this evidence that PW1 as an expert was also under the impression that the "no objection" obtained was sufficient and there was no need for them to obtain another one, after deciding to award the contract to Plinth. This goes to confirm, DW1 's impression that there was no need to obtain another "no objection" in the r-- - circumstances. REPUBLIC O► ZAM-.,, l ":-~ THE JUDICIARY MAGIrSTR ,.'_) T RUil DINC COMPLEX ~ ,.!· ..... .. ~i ; J19 .... ~ u -~~~ PF.i, ;_,1; ~,1.. 1,l:.StOI::. :I' M~ .. ,RATE 2 P O EHJX :io· 0'.'. LUSAt< \ The state in their submissions argued that the accused unilaterally and arbitrary nullified the evaluation report and the authority obtained from ZPPA to award the contract to Roads and Pavings and caused the contract to be awarded to Plinth. On the evidence on record, it is clear that the MPC did not revisit the whole process but just part of it. It is also clear that what the MPC did was to rescind the decision to award the contract to Roads and Paving and awarded it to Plinth and as already stated, the no objection by ZPPA was not to the awarding of the contract to Road and Paving but to the awarding of the contract for the rehabilitation of urban roads. More so, the process was revisited because the MPC did not follow the laid down procedure. Therefore, the state's contention cannot stand. There is no evidence in this matter that can lead to a conclusion that the omission by the accused was intentional or purposed. It cannot therefore be said that the failure to obtain a 'no objection' was intentional, deliberate or purposed on the part of the accused. More so, on the part of DW3, requesting for a 'no objection' from ZPPA was not among his responsibilities. Therefore, the failure could not be attributed to him in any way. In CHITAMBALA NTUMBA v THE QUEEN, it was held that "mens rea had to be proved by the prosecution." It has always been a principle of common law that mens rea is an essential element in the commission of any criminal law offence. unless a statute clearly or by implication rules out mens rea, a man should not be convicted unless he has a guilty mind. The question that I ask myself at this stage is, did the accused possess a guilty mind at the material time? The fact that the assumed failure could not be said to be willful, it could not also be said that the accused persons possessed guilty minds. The evidence as it stands in this matter also lacks the second element of the crime which is the mens rea. Therefore, the answer to the question is that the accused did not possess guilty minds. Taking it further, on the part of DW1, she proposed that the engineer's estimate be considered as it was a requirement and proceeding with evaluation without applying it, was an error on the part of the committee. The committees' decision to apply the engineer's estimate did not put the Government at loss but it benefitted considering the purpose that the engineer's estimate serves. In the case of MWEWA MURONO V THE PEOPLE, it was held that J20 "In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution." It was further held in the same case that "the standard of proof must be beyond all reasonable doubt." On the totality of the evidence on record, I find that the prosecution has not proved the offence of willful failure to comply with applicable procedures or guidelines contrary to section 33(2) (b) of the Anti-Corruption Act No. 3 of 2010 beyond reasonable doubt. Consequently, I find the accused NOT GUil TY and I ACQUIT them forthwith. Delivered in open court this ........................................ day of ..................................................... 2022 J21