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.