PROPRIETORS of Prince Construction Jayesh Shah and Shaleetha Mahabeer have pleaded with the Constitutional Court to determine whether the office of the Attorney General is above the law to disregard a court order compelling it to pay them the judgment debt.
This is in a matter where the two have petitioned the State over the decision by the Attorney General’s office to pay them K750,000 as costs which emanates from the court cases in which they were challenging the seizure of funds from Shah’s account by the Drug Enforcement Commission over thirty years ago on allegations of money laundering.
The plaintiffs in their petition said that the Attorney General placed conditions on the judgment debt by requesting that they forego interest if they wished to recoup the money on time.
Shah and his business partner Mahabeer were seeking an order that the Attorney General is bound by the tenets of good governance, integrity, equity, social justice, equality and non-discrimination enacted under Article 8 of the Constitution in the manner funds from government revenues were paid out to judgment creditors.
They want an order that the payment of funds to Judgment creditors must be in a predictable, open and transparent manner and there should be no discretion to disqualify judgment creditors based on criteria invented by the Attorney General outside court process.
The petitioners are further seeking a declaration that the Attorney General’s refusal to pay the judgment debt owed to them under the consent order executed in the Supreme Court between themselves and the respondent was unconstitutional.
When the matter came up for hearing before judges Mungeni Mulenga, Palan Mulonda, Margaret Munalula, Martin Musaluke and Judy Mulongoti, Shah and his business partner said there was no Constitutional basis for the Attorney General to refuse to pay them their money because of the law which shields his office from executing the recovery of judgment debts.
They said the Attorney General was in breach of the consent order and discriminated against them to cherry pick whom to pay.
They asked the court to compel the Attorney General to pay the judgment debt from government revenue by following chronological order.
In his reply, lawyer representing the State Martin Lukwasa said that to suggest that the Attorney General was selective in making payments and that his position could be compromised by corruption was neither here nor there.
“The matter was before the compensation committee, we can’t have two different institutions dealing with the judgment debt. The petitioner had the opportunity to approach the Attorney General to deal with the judgment debt outside the compensation committee,” Lukwasa said.
Asked who should be paid first according to the compensation committee, Lukwasa said there were creditors of the State like retirees who had not been paid since 2009 and that he was not in a position to answer for the committee.
“It is my humble prayer that the petition be dismissed with costs,” said Lukwasa.
In his reply, Shah said according to the consent order, the judgment debt dated September 21, 2009 could be paid in installments and later liquidated in November 2009.
Shah asked the court to determine whether the compensation Act of 2016 was applicable to a consent order of 2019.
“They (state) have not challenged the line of the consent order. Is the Attorney General above the decision of the Supreme Court not to abide by the decision of the court?” Shah wondered.
“The issue cannot be res judicata on the constitutionality of the conduct of the Attorney General. It is in the interest of justice that upholding the rule of law this court is invited to make a determination if the Attorney General is abiding by his constitutional mandate.”
Jeah Madaika, who is representing Mahabeer, said the Attorney General was acting with discretion that had no basis in law.
“If there is a lacuna in the law, the Attorney General has to present a Bill before Parliament to deal with the lacuna, especially a lacuna which falls within his ministry. All the debt accrued has been subject to the discretion of the Attorney General,” Maidaika said.
He submitted that the court was being asked to compel the Attorney General to deal with the debts owed to his client.
“There is no transparency, accountability and equity; everything is shrouded in mystery. We pray that the court compels the Attorney General to make these payments,” said Madaika.
Judge Mulenga reserved judgment to a date to be communicated.
In 1998 the DEC seized billions of Kwacha from Shah on allegations of money laundering which resulted in 13 court cases against the Attorney General and the complainants were successful.
Three of the cases were appealed against by the state but the courts upheld their judgment.
On September 21, 2009, the parties entered into consent for payment of K253,746, 269 as costs with interest.
In another matter, Supreme Court judge Mumba Malila who was then Attorney General wrote to the plaintiffs to further forego interest in order to reclaim their money but they declined saying they had already forgone the interest.
In 2011, Court of Appeal judge Mubanga Kondolo who was Solicitor General wrote to the complainants to consider forgoing interest and enhance the speed to close the issue of K750,000.
Later in 2014, former Solicitor General Abraham Mwansa on September 16, 2014 made a similar request forcing the complainants to petition the office of the Attorney General for setting conditions on the judgment debt.