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Tuesday, 7 July 2009

How do we repair the Attorney General?

Chiyaba Njovu has written an interesting article on the role of the Attorney General in the wake of Judge Musonda's reversal of the main conclusions in the Dora Siliya Tribunal :


Over the past few months, I have been following with interest the happenings among our learned members of the Judiciary. There seems to be so many Schools of thought in interpreting the law by our learned colleagues and this brings into ridicule the role of the judiciary. How independent can such an uncoordinated team of experts be? Who do we as lay persons believe? Is there any significant merit in the judicial rankings or they can also be interpreted as personal opinions without any reference to legal authorities?

Well, why do I as a layman raise these questions? The case of legal interest to all of us who see our government as an organised system built on principles of professionalism and good governance. I raise this point because I know the role of the Attorney general in government is to guard against legal blunders by our Ministers and other non-legal experts holding constitutional offices. In this regard I was quite impressed with the evidence that was adduced by the Attorney General and his firm statement that the Attorney general’s advice is supposed to be taken very seriously. That to me made a lot of sense and I saw Dora Siliya’s resignation as a positive step towards cementing our belief in our existing legal instruments. I was very impressed that our system has cemented in itself checks and balances that could inspire confidence in our government instruments among the citizenry.

To my surprise, when I read the judgement by judge Musonda after the judicial review, I was taken aback and wondered whether our judicial system has any form of consistence in its instruments of delivering justice. First of all, the Dennis Chirwa tribunal had Supreme Court judges who made their findings clear with their justifications. I thought they were quite thorough and clearly advised government on the dangers of ignoring the Attorney General’s advice.

If my basic understanding of Cabinet is anything to go by, the Attorney General is a non-politician who sits in cabinet for the sole purpose of providing legal advice on all government policy decisions and contractual obligations. It is for this reason that erring Ministers are never sued in their personal capacity but through the Attorney General’s office. Our understanding of this system is based on the fact most Ministers are non experts in law or do not need to possess expert knowledge as a requirement for their appointment. The attorney General is an expert. If these expertise can be overlooked with impunity, then why do we contract such an expert as a constitutional office holder?

This brings the question I would like answered by judge Musonda, if possible, or any legal brains out there. If the Attorney General advises against government committing itself to a particular transaction but his/her advice is overlooked, how do we then handle any consequences arising from such an oversight? Would we expect the Attorney General to defend such a case on behalf of government? What moral standing and conviction would he/she have in defending such a case?

To me, this is what has cost our governments huge sums of money at the expense service delivery and I beg our legal brains out there to stand up and advise if such anomalies should be allowed as a norm in our society. I strongly feel that there is no justification for any Cabinet Minister to disregard the Attorney General’s advice and that the Attorney General’s Office is a mandatory constitutional office and not a talk shop. We need to respect our Constitutional Offices irrespective of our position in Society and that must start from our top leadership. I would implore our learned colleagues to stand up and make this call for the benefit of the nation. We need a team of people who can genuinely work together in an honest manner and the case of Dora Siliya vs Mr. Mumba Malila must teach us a lesson. I do not see how Dora Siliya could work with Mr. Malila amicably. This must be redressed and the appointing authority ought to look at this issue in the interest of the nation. Our country cannot afford further litigations and loss of money due to avoidable transactions and yet we are so quick to dismiss service delivery chores with impunity. We need to be magnanimous and bite the bullet when need demands it. Something must give – either we govern through friendships as a nepotistic team or we govern on constitutional provisions and respect for the law of the land.
I think the questions raised are important, but probably does not zone in enough on the critical issue. The rationale for ensuring the Attorney Generals (AG) advice is paramount is simple. In any other society suing government is fairly standard due to the transparency of government. Unfortunately in Zambia even if a Minister / President made the "wrong decision" after getting correct advice from the AG very few people would sue Government and ensure that it is brought to book. Part of the reason is that people do not trust our judicial system. Many Zambians do not believe that Government or Ministers can really be found at fault by our Judicial system.

The other reason is that of the "free rider" problem. In many instances, save for the likes of Mr Harrington, people would prefer to sit on their hands and wait for someone else to bear the cost (and I don't just mean financial) of taking Government to task. We see this in many areas. We always want others to do it for us, not us as individuals to do what we can to hold Government to account. I do and we all do it. Its rational! So the only solution I believe is it to ensure that mechanism are put in place that helps avoid having to rely on individuals to enforce good government behavior through the courts. A new provision in law should make it clear that the AG's advice is compulsory and must be adhered to. The current provisions apparently are not clear enough, if one is to go by Judge Musonda's pronouncement.

5 comments:

  1. It is highly advantageous to have an effective AG, one who performs within the mandate of his Authority. The AG’s first and foremost responsibility is to uphold the constitution, which mandates him to offer legal advice to government in matters requiring such opinion. The AG by virtue of his mandate and jurisdiction must not offer advice contrary to government’s position. Where he finds himself at variance with government’s position, he has the option of tendering in his resignation or choose to waiver his opinion. The government is never to undermine the AG’s legal advice but work in close collaboration with him. Government by no means contravenes its own requirements and regulations when and if it seeks advice beyond the AG’s office.

    What is absolutely unacceptable is for the AG to act contra to government’s position as the position taken by Malila during the tribunal to investigate Dora. By taking a position against government, he broke the trust that ordinarily exists between a lawyer and his client in a way that does more damage to his reputation than does on anything else. It is a foregone conclusion that as a result of his stance in that matter, he no longer enjoys government trust and support. If anything, he is held in high suspicion and only remains in office for whatever convenient reason government has.

    The AG’s role has never been to offer checks and balances to government. It has never been his role to prosecute government where breaches of regulation or statutory law have been or suspected to have been committed by officers within government. The AG has never been under the legislature or under the judiciary but has ever been under the executive wing of government. The checks and balances within the executive are directly related to its mandate to adhere to statutory requirements and regulation. The legislature and for that matter any civilian person aggrieved, may challenge or sue government where wrong may be suspected or have been committed. The judiciary is there to protect and guarantee protection and justice to any party or person(s) convinced that an injustice or crime has been committed by individuals, institutions (private or public) or government.

    The AG’s office is an integral part of government and not independent of government and as such should never be seen to rival government position, even where government is in the wrong. In the event of dispute between the AG’s advice and any government official as happened in the afore mentioned matter, the statutory regulations clearly spell out the procedures to be followed. Leaking classified information to the media has never been stipulated nor part of those regulations. The government benefits a great deal if it has the open support of the government chief legal expert. It is embarrassing for the chief legal officer to testify against his own client. It spells mutiny of a sought that ever fails the intended objective. To whose benefit is it for the AG to be seen to be opposed to government? The strength that government draws from a loyal AG is insurmountable.

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  2. It is only fair that from the onset of his term in office, a President must be given the right to appoint office bearers of his choice, who will suit his vision and incline, not only policy wise but in philosophy as well. The unnecessary suspicions and quarrels emanating from less than loyal disposition of certain individuals occupying such high offices as that of the AG is detrimental to the wheels of government. It is necessary to purge government of all such as represent dissenting views and retain only those that fall within the vision of the running government. It has always been necessary to emphasize the unpartisan nature of the civil service but certain key office positions even with such a set up require loyalists.

    The current AG has his time spelt out, he has outlived his usefulness. He is more of a liability than anything else and poses an unnecessary hurdle for the wheels of government to operate efficiently. As it is, he is a well come tool for the opposition Politicians than government. His position is suited for the agendas of those that are set on intent to usurp power by illegal means. He is clearly a convenient mole for representing the opposition politics. Government must unapologetically yet cleverly uproot from government all those who occupy high offices who seem inclined to support opposition politics. The last thing that the government machinery needs is internal wrangles and bickering which are best suited and done by parliament. There are enough quarrels to occupy them there. What the government machinery needs is efficiency and what better way to achieve this than ensuring that the top civil servants have a common vision and purpose in track with the President. That is not nepotism or bigotry. That is leadership.

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  3. Hey Mr or Ms without a name why dont you address yourself to the thrust of the author's argument. For example what are the implications of judge Musonda's ruling that Ministers are not obliged to respect or follow the AG's legal advice and they could do as they see fit? If this is the case then why do we have the AG as a constitutional office? Is it for decoration? Man without a name please remember that the AG is a legal position. The holder of this position has to follow and act according to the laid down law. He also has to advise the govt as to the legal implications of their actions. The AG doesnt need to follow govt policy or the President he just has to make sure that the actions of the President and his govt are within the law. The AG follows the law not the President.

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  4. Frank

    Instead, why dont you come out of your self induced stupor. The AG is not the only constitutional office in the civil service. Dont you get it. Perhaps explain to me your understanding of a 'constitutional office'?

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  5. Anonymous;
    Is this a straw man argument? There is obviously nothing in my contribution that suggests that the 'AG is the only constitutional office in the civil service'.That is your claim not mine! Please revisit my original piece; it's written in English.

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