The Malawi Law Society (MLS) has said the occupation of the offices of the Minister of Justice and the Attorney General by one person is not good for a democratic dispensation as there are possibilities of conflict of interest in the execution of duties.
Speaking in an interview, MLS Honourary Secretary Bright Theu said, even though some interpretation of the Constitution and precedence allow one man to hold these two positions it is tricky because the same person will act as government’s cardinal legal advisor yet the same will be required to give himself instructions.
He was, however, quick to say that on proper interpretation of the statutes, the offices are supposed to be separated one being political and the other a public office.
“By our constitutional design it is very possible for the AG to double as Minister as well. The Constitution expressly provides that: ‘the office of Attorney General may either be the office of a Minister or may be a public office’. On a proper reading, that provision means the AG can either be a minister of government or purely a public office occupied by a person appointed specifically as AG as is the case with other public appointments such as Directors of ACB or Public Prosecution.
“The combination of the two offices in one person is not something we should find pleasure in as a democracy. There is something about conflict of interest that comes in. Practically, what the present scenario means is that the AG who is the principal legal adviser to the government is also part of the same government in the capacity of Minister of Justice. It is reasonably expected that the AG should always give objective legal advice to the government (ministers included) including where such advice may be adverse to the interests of those in the government and their political schemes” he said.
Theu added: “Similarly, as principal legal adviser to the government, the AG receives instructions from the government, which includes ministers, and in the present scenario, he is one of them. That means he as a minister will be giving instructions to himself as AG. Of course the AG’s chambers have a team of lawyers who can act on such instructions, but even then, they only do so in a delegated capacity. The mandate to give legal advice to the government still vests in the office and person of the AG,” Theu said
He said Malawi’s constitutional history has witnessed a lot of political power being used to contravene the Constitution as such there is need to separate the offices so that the AG must not be concerned with his or anybody’s political aspiration but only advise the government on legal matters.
“With the present scenario, without doubting the professional acumen of, and with all due respect to the Hon. Minister of Justice and AG, Mr. Ralph Kasambara, we risk legal advice being marred by political considerations, imperatives, and schemes which he will simultaneously be deliberating in the capacity of Minister of Justice – a political office,” Theu said.
Theu said, however, that having one person hold both positions can be a prudent economic move as the government will only pay one salary assuming that there may not be incidents whereby public officers bearers have been drawing two salaries contrary to government laws.
“As for the advantages of the AG being a minister, well, probably political convenience and may be financial prudence as well in terms of possible cost reduction as having two persons for the two offices may demand more on the public purse than a single person occupying both offices, assuming the one person does not draw perks for both offices as two separate persons would do,” he said.
During the United Democratic Front (UDF) regime, Peter Fatchi once served as Minister of Justice and Attorney General at the same time.
The role of the Attorney General was in the limelight recently during the sudden transition from the late Bingu wa Mutharika to Joyce Banda.
Reports indicate that the Attorney General, Maxon Mbendera who was not part of the executive stood his ground by advising cabinet ministers the correct reading of the Constitution on succession, but was overruled and told the transition after Mutharika’s death was being handled ‘politically’ not legally.
As someone who was not part of the cabinet, Mbendera was able to challenge the executive arm of the government that he was willing to resign as the decision to swear Peter Mutharika as president was illegal.