Clerk of Parliament (CoP), Fiona Kalemba has blocked the Public Accounts Committee (PAC) from proceeding with its inquiry in the controversial K53 billion Immigration uniforms supply deal involving businessman Abdul Karim Batawarara the director of Africa Commercial Agency and Reliance Trading Company.
PAC was scheduled to start the inquiry on Friday by questioning senior officers from department of Immigration and Citizenship Services, the Attorney General and the Secretary to the Treasury on the legitimacy of the K53.9 billion claim the two firms are demanding from the public purse which has quotations of K60 000 for a shirt, K60 000 for gloves and K100 000 for a belt,
The chairperson of PAC, Alekeni Menyani said his committee has cast doubt at some claims in the deal.
In a legal opinion, Clerk of Parliament, Kalemba, who is also a lawyer, said PAC cannot proceed with the inquiry because the matter is in court as government is challenging Batawarara at the High Court – commercial division in Lilongwe Registry.
“The case is at a point where mandatory mediation h (as per Court procedures) has failed and the matter is proceeding to full trial,” Kalemba said in her legal opinion.
She said it will be “difficult” for PAC to proceed to hold the enquiry and question witnesses “without prejudicing the trial of the case.”
The Clerk of Parliament states that it is only after the Court has pronounced itself on the matter that the Committee can “comfortably hold an enquiry, if there will be need to do so.”
She stressed that PAC is empowered to hold enquiries and investigations and to require any information which is relevant to those investigating.
“However since the subject matter of the current enquiry is already before the Court, the Committee should give consideration to the Sub-judice Rule.
“There is a real likelihood that proceeding with the enquiry will prejudice the Court proceedings already underway,” states Kalemba.
But other legal experts that Nyasa Times asked for their opinions argue that the power to investigate into any matter of public interest is derived from the Constitution which is the supreme law of the land.
“Section 60(3) of the Constitution mandates the National Assembly and of its committees to conduct such investigations in as far as the same are in the prudent exercise of the roles of Parliament including the oversight function over the public purse.
“The subjudice rule is based on the Standing Orders which are inferior to the Constitution,” said one law expert from the private practice.
She was supported by another law scholar who said besides, the Public Accounts Committee, in as far as the enquirer into how Government would have committed itself to such a whopping K 53 billion contract on “very expensive for nothing uniforms, “has the power to override the Standing order subjudice rule and still quiz the Government officials involved to explain the whole scheme.
“It has to be clearly understood that the task of the Committee is not to pass judgment on the matter like Courts do. Rather, it is the role of Parliament to enquirer into the matter and informs the public in what has happened. That will not in any way translate into prejudice to what the court will do.
“After all, once the Committee does the investigation, the matter will be viewed from the Government angle of the argument just in the same way any of the parties in court proceedings may talk to the Press about what they think is the correct position of law and how their facts would lead to a particular verdict,” said the law expert.
Either way, despite the difference in the opinion of the parties as presented in the public domain, the Court still proceeds to render its verdict, according to him.
“I therefore take the view that the Committee will not violate the subjudice rule if it investigates this matter. After all, this being an enquiry that may also lead to criminal prosecution in other instances, the Companies concerned may chose to say or produce whatever they deem for or remain silent. Nevertheless the Committee would exercised its constitutional mandate which cannot be overridden or frustrated by a mere rule of procedure,” added the law expert.
In its pursuit to interrogate the deal, PAC cited Section 9 of the National Assembly (Powers and Privileges) Act which empowers the committee to summon the government officials and the directors or secretaries of Africa Commercial Agency and Reliance Trading Company.
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