The Malawi Law Society (MLS) has cautioned government in several areas, including the apparent conflict of interest for the Attorney General (AG) who doubles as Minister of Justice and Constitutional Affairs.
In a statement issued on Thursday, the society says the AG is principal adviser to government, which the lawyers’ body understands to mean all three branches of government.
The MLS says under sub-section (5) of Section 98 of the Constitution, the office of the AG may either be a public office or that of a public Cabinet minister.
The statement, signed by MLS president John Gift Mwakhwawa, says where the AG is also a Cabinet minister, he or she is by virtue of that designation a member of the Cabinet and is accountable to the President for the administration of his or her chambers.
The statement says it is the society’s view that the designation of the AG as a government minister is not in the public interest as it creates an obvious conflict of interest in the way the AG discharges his duties.
It reads: “This becomes even more pronounced when the Attorney General is required to offer legal advice to the other branches of government such as the Legislature. It is important to stress that as a legal adviser, the Attorney General has an ethical duty to be objective, impartial and independent in the manner in which he discharges his duties.
“The society observes that where the Attorney General is also a member of the Cabinet, it will be a challenge for him or her to maintain the ethical appearance of objectivity, impartiality and independence required of him or her, even though he might as well be so in practice.”
The MLS suggests that in the interim, however, as the office of the AG is that of a Cabinet minister, the AG should retain for the Speaker of the National Assembly independent counsel from outside his chambers to represent him in all cases surrounding the application of Section 65.
The MLS says incidentally it noted the recent out-of-court settlement involving litigants closely associated with the current AG and the fact that the said litigants were represented by a firm where the current AG was a senior partner before his current appointment.
It says: “Without commenting on the merits of the litigants’ claims and /or the quantum of the damages agreed upon by the parties, the Society wishes to state that what transpired herein was a clear case of conflict of interest involving the Attorney General.”
The AG Ralph Kasambara could not be reached for comment.